Petition for Writ of Certiorari — Cholla Ready Mix, Inc. v. Mendez

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ee 04-952 JAN 12 2005

In The

Supreme Court of the Gnited States

CHOLLA READY MIX, INC.,

Petitioner,

VICTOR MENDEZ, Secretary of the Arizona Department

of Transportation (ADOT); JEFF SWAN, ADOT

Holbrook District Engineer; WILLIAM BELT, ADOT

Environmental Planning Services Department;

THOR ANDERSON, ADOT Official; RICHARD DUARTE,

ADOT Environmental Planning Section Manager:

BETTINA ROSENBERG, ADOT Historic Preservation

Coordinator; JAMES GARRISON, Arizona State

Historic Preservation Officer; and ROBERT GASSER,

Arizona Parks Department Compliance Officer,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

WILLIAM PERRY PENDLEY*

*Counsel of Record

CHRISTOPHER T. MASSEY

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Petitioner

OFFICE OF THE CLERK

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether a decision by state officials to bar a

landowner from using his private property because some

American Indians assert that the land is “sacred” violates

the Establishment Clause notwithstanding claims by state

officials that the “sacredness” of the land is historically

and culturally important to those Indians?

2. Whether a-complaint alleging an Establishment

Clause violation, which satisfies notice pleading, may be

dismissed for not alleging facts sufficient to establish a

prima facie case under Lemon v. Kurtzman, 403 U.S. 602

(1971), given the holding of this Court in Swierkiewicz v.

Sorema, 534 U.S. 506 (2002)?

RULES 14.1(b) AND 29.6 STATEMENT

Petitioner, Cholla Ready Mix, Inc., has never issued

shares to the public. It does not have a parent corporation,

nor is there any publicly-held company that owns ten

percent or more of its stock.

Respondents include: Victor Mendez, Secretary of the

Arizona Department of Transportation (“ADOT”); Jeff

Swan, ADOT Holbrook District Engineer; William Belt,

ADOT Environmental Planning Services Department;

Thor Anderson, ADOT Official; Richard Duarte, ADOT

Environmental Planning Section Manager; Bettina

Rosenberg, ADOT Historic Preservation Coordinator;

James Garrison, Arizona State Historic Preservation

Officer; and Robert Gasser, Arizona Parks Department

Compliance Officer.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .o.o.oo.ococccccccccsscsseseoeeseecss... i

RULES 14.1(b) AND 29.6 STATEMENT... ii

TABLE OF CONTENTS ..0.0..0....cccccssccssscssessessoeeeeece.... iii

TABLE OF AUTHORITIES 20.0..0.0..cccccccccccccoceseeceseese.... vi

PETITION FOR A WRIT OF CERTIORARI... 1

GPa eN OY MEMO WY 0.ccassacessssnsenessrensusscsssereetencessezea,..3 1

STATEMENT OF JURISDICTION .........cc000000-0-.0... 1

CONSTITUTIONAL AND REGULATORY PROVI.

IEW EIN VOUW IED ..0.<..cesccccecsasesccssccsesssssessenseses...... 1

STATEMENT OF THE CASE ..w.o.oo.o-occcccccceseceececeecs 2

REASONS FOR GRANTING THE PETITION... 5

I. THE NINTH CIRCUITS HOLDING CON.

FLICTS WITH THE ESTABLISHMENT

CLAUSE JURISPRUDENCE OF THIS

COURT AND OTHER CIRCUITG..................... 5

A. The Ninth Circuit’s Holding Ignores the

Test Set Forth by this Court in Lemon v.

NE Sitiiiititeccinenstun ee 6

1. The Ninth Circuit’s Holding Conflicts

Regarding “Secular Purpose’”................ 6

2. The Ninth Circuit’s Holding Conflicts

_ Regarding “Primary Effect” .................. 7

3. The Ninth Circuit’s Holding Conflicts

Regarding “Excessive Entanglement”... 8

II.

TABLE OF CONTENTS - Continued

Page

B. The Ninth Circuit’s Holding Contains

None of the Analysis Required By this

Court and the Circuits if Challenged Reli-

gious Symbols Contain Historical and Cul-

SE FD vasinsintisthiniitnsenictectntnpinnens

1. The Mere Presence of Historical or

Cultural Features Does Not Automati-

cally Render the Display of a Religious

Symbol Constitutional ........................

2. Two Cases Now Before this Court Pre-

sent the Issues of Whether the Pres-

ence of Historical or Cultural Features

_ in a Religious Symbol Save It from a

THE NINTH CIRCUITS DECISION CON-

FLICTS WITH THIS COURT’S HOLDINGS

IN SWIERKIEWICZ v. SOREMA AND

Ce 0 I tinisictnricenensnsttinitnnonaneminnnanin

A. Cholla’s Establishment Clause Claim May

Not be Held to a Heightened Pleading

IIE citiictisidinicentimesticiaicntieapantcubebats

1. This Court has Barred a Requirement

that a Plaintiff Plead a Prima Facie

2. An Establishment Clause Claim May

Not Require Proof of All the Elements

of Lemmon v. Kurtzman ..............ccsceeeeeeees

B. Cholla’s Complaint Meets Notice Pleading

Requirements as Defined by this Court’s

Holding in Conley v. Gibson ..............:0000006

TABLE OF CONTENTS - Continued

Page

C. The Ninth Circuit Failed to Accept the Al-

legations of Cholla’s Complaint as True

and Instead Assumed Facts Not in Evi-

QOD ensiniisisninlanbiictalee mete an aeeeees 19

1. The Ninth Circuit Assumed Facts Re-

garding a “Secular Purpose” ................. 19

2. The Ninth Circuit Assumed Facts Re-

garding “Primary Effect”.................0..... 20

3. The Ninth Circuit Assumed Facts as to

“Excessive Entanglement” .................... 21

CT AMIE sihinsiensiopithcicsiasein eae 22

TABLE OF AUTHORITIES

Page

CASES

ACLU of KY, et al. v. McCreary County, et al., 354

F.3d 438 (6th Cir. 2003), cert. granted, 125 S.Ct.

DOS GID ccceersnccsssescnenesesconstinnenieiaaemeiaiann 11, 12

Allegheny County v. Greater Pittsburgh ACLU, 492

Cte Giee CRIED vncnccescnccnscenchvecssnensussbenetsensantiaimisaell passim

Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980)........... 8

Board of Educ. of Kiryas Joel Village School Dist. v.

Gremnet, GES WE. GBe CRD cccscsscstussdinciiscctenstssoevaniions 7,8

Buono v. Norton, 371 F.3d 543 (9th Cir. 2004).................. 10

Cholla Ready Mix, Inc. v. Mendez, et al., 382 F.3d

te | ee ee 2, 10, 11, 12

Conley v. Gibson, 355 U.S. 41 (1957) ..........c eee .. 16, 22

Crawford-El v. Britton, 523 U.S. 574 (1998) .................. 14

Kong v. Scully, 341 F.3d 1132 (9th Cir. 2003)................... 20

Larson v. Valente, 456 U.S. 228 (1982) .............ccceeeeeeeeee 15

Leatherman v. Tarrant County Narcotics Intelli-

gence & Coordination Unit, 507 US. 163

(RBBB) ..<corccsrccsccsssecsncssclichetssddembineuidinimucaasaaae 14, 19, 20

Lee v. Weisman, 505 U.S. 577 (1992) ...............cccceceeeeees 6, 15

Lemon v. Kurtzman, 403 U.S. 602 (1971).................. passim

Lynch v. Donnelly, 465 U.S. 668 (1984).......... cece ceeeeeees 9,15

Lyng v. Northwest Indian Cemetery Protective Ass'n,

GBS UE. GBD CRIED acnccecsnteccssssenvscecencecenssuceisedbieseteumeesteeth 8

Vii

TABLE OF AUTHORITIES ~ Continued

Page

Marsh v. Chambers, 463 U.S. 783 (1983) .......ccccccccccoceceee. 15

Mayweathers v. Newland, 314 F.3d 1062 (9th Cir.

SSP TEED sess nssciatidcanoiapiiideilbpaieaciiancingleida ao 20

Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002).................. 7

Separation of Church and State Committee v. City

of Eugene, 93 F.3d 617 (9th Cir. 1996) 00.0.0... eccccccccseceees 10

Swierkiewicz v. Sorema, 534 U.S. 506 (2002)............ passim

U.S. v. Carroll, 567 F.2d 955 (10th Cir. 1977) .......cccccccccee. 7

Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003),

cert. granted, 125 S.Ct. 310 (2004) 00... ececccccceeeee, 11, 12

CONSTITUTIONS

USS. Comet. ammnamndl, 3 o....ccccceconcceccccsssceees ieiasinnianenasteuiiieniianen 1

STATUTES

ee ee Se kiichiniiataccec cease tai ote hen sakes 1

i RRP RR EE CIS TWN 1

eFC ITED ccihicicimiscinindieiiiniaiietnience cee ta na 1

OTHER AUTHORITIES

Federal Rule of Civil Procedure 8(a)............... 13, 14, 16, 18

Federal Rule of Civil Procedure 9(b)..........cccccccccecceee-. 12, 14

Federal Rule of Civil Procedure 12(b)(6) ............cc0.0. passim

Federal Rule of Civil Procedure 54(b)........cccccccccccccceeeee----.. 4

‘

RE, ORI

salle ae

PETITION FOR A WRIT OF CERTIORARI

Cholla Ready Mix, Inc. respectfully petitions this

Court for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the Ninth Circuit (App., infra, 1-15)

from which review is sought is reported at 382 F.3d 969

(Sth Cir. 2004). The opinion of the District Court (App.,

infra, 16-19) is unreported. 7

STATEMENT OF JURISDICTION

The judgment of the Ninth Circuit was entered on

September 1, 2004. A timely petition for rehearing en banc

was denied on October 14, 2004 (App., infra, 23-24). The

jurisdiction of this Court is invoked under 28 U.S.C.

§1254. Jurisdiction in the District Court was based on 28

U.S.C. §1331. Jurisdiction before the Ninth Circuit was

based on 28 U.S.C. §1291.

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

The Establishment Clause of the First Amendment to

the United States Constitution, which is applicable to the

States through the Fourteenth Amendment, provides in

pertinent part: “Congress shall make no law respecting an

establishment of religion. . . .” U.S. Const. amend. I.

The relevant provisions of the 2000 Arizona Depart-

ment of Transportation Standard Specifications for Road

and Bridge Construction are reproduced at App., infra, 26-

48.

STATEMENT OF THE CASE

Woodruff Butte is private property owned by Peti-

tioner, Cholla Ready Mix, Inc. (“Cholla”), located south

east of Holbrook, Arizona. App., infra, 56. Cholla is owned

by Dale McKinnon and his family, which first leased and

then purchased Woodruff Butte to mine the unique and

valuable aggregate found there. App., infra, 56.

In 1990, the Hopi, Zuni, and Navajo Indian tribes

(collectively, “Tribes”) passed resolutions against the

mining of Woodruff Butte because they considered it to be

a place of religious significance or “sacred.” App., infra, 57.

In or around 1990, the Arizona State Historic Preservation

Officer declared Woodruff Butte eligible for listing on the

National Registry of Historic Places (“NRHP”) over the

objections of Mr. McKinnon. Woodruff Butte has yet to be

listed on the NRHP. App., infra, 57.

In June 1991, the Arizona Department of Transporta-

tion (“ADOT”) granted Cholla a commercial source number

allowing aggregate mined from Woodruff Butte to be used

in state highway projects. App., infra, 57. Nonetheless,

beginning in 1992, ADOT officials began adopting strate-

gies to discourage potential purchasers of aggregate from

using Woodruff Butte because of its purported religious

significance to the Tribes. App., infra, 59-63. These strate-

gies culminated in 1999 when ADOT promulgated new

commercial source regulations, under which all existing

‘

{

commercial source numbers, including that of Cholla,

would expire at the end of that year. App., infra, 65.

Thereafter, commercial source numbers could be obtained

only if the applicant submitted an environmental assess-

ment that considered the potential impacts of mining to

locations eligible for listing on the NRHP; only Woodruff

Butte met this description. App., infra, 65.

On June 26, 2000, as a result of ADOT’s new regula-

tions and policy against the mining of Woodruff Butte,

ADOT denied Cholla’s application for a new commercial

source number for Woodruff Butte despite Woodruff

Butte’s previous status as an approved aggregate source

site. App., infra, 67. The rejection of Cholla’s commercial

source number application by ADOT was premised solely

on the purported religious significance of Woodruff Butte

to the Tribes. App., infra, 67-69.

On June 25, 2002, Cholla filed suit alleging that these

actions and the policy against the mining of Woodruff Butte,

as applied, violated Cholla’s rights under the Establishment

Clause, federal civil rights laws, and the Arizona Constitu-

tion.’ On September 30, 2002, Arizona officials (“Respon-

dents”) filed a Motion to Dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(6). Cholla subsequently filed a

motion for leave to amend its Original Complaint. Cholla’s

First Amended Complaint alleged more fully the injuries it

has suffered, including violation of its rights under the

* Cholla sued state and federal officials, but the federal defendants

were dismissed by joint stipulation of the parties; the state officials are

the only remaining defendants in the case. For purposes of this petition,

Cholla seeks review only of the dismissal of its allegations and claim for

relief under the U.S. Constitution’s Establishment Clause. See, App.,

infra, 68-69.

a a a al

Establishment Clause. App., infra, 49-82. On January 17,

2003, the District Court granted Cholla’s Motion for Leave

to File a First Amended Complaint; nonetheless, in the

same Order, the District Court granted Respondents’

Motion to Dismiss. App., infra, 16-19.

On February 3, 2003, Cholla filed a Motion for Recon-

sideration, which included an alternative request for

certification of final judgment pursuant to Federal Rule of

Civil Procedure 54(b). On February 21, 2003, the District

Court denied Cholla’s Motion for Reconsideration but

granted Cholla’s request for certification of final judgment

against Respondents. App., infra, 20-21. On March 7,

2003, Cholla timely filed its Notice of Appeal with the

Ninth Circuit. é

On September 1, 2004, the Ninth Circuit affirmed the

dismissal of Cholla’s Complaint and its Establishment

Clause claim, App., infra, 1-15, holding that “no evidence

could bolster Cholla’s Establishment Clause claim because

it is premised on flawed analysis of the governing law.”

App., infra, 8. The Ninth Circuit described that “governing

law” as providing that “the Establishment Clause does not

bar the government from protecting an historically and

culturally important site simply because the site’s impor-

tance derives at least in part from its sacredness to certain

groups.” App., infra, 13.

In addition, although the Ninth Circuit, in determin-

ing whether the District Court had erred in granting

Respondents’ Rule 12(b)(6) motion, was required to assume

the truth of the allegations in Cholla’s Complaint and to

construe those allegations liberally, the Ninth Circuit

evaluated the strength of Cholla’s Establishment Clause

claim. In so doing, the Ninth Circuit held that Cholla’s

Complaint was deficient because Cholla had failed to set

forth a prima facie case for an Establishment Clause claim

under Lemon v. Kurtzman, 403 U.S. 602 (1971); for exam-

ple, Cholla had not alleged that Arizona officials were not

motivated by a secular purpose. App., infra, 9.

Finally, the Ninth Circuit addressed the merits of

Cholla’s Establishment Clause claim. To do so however,

given the stage of the proceedings, that is, prior to discov-

ery and the completion of a factual record, the Ninth

Circuit assumed facts not in evidence. For example,

although Cholla alleged that Woodruff Butte is private

property to which no American Indians have access, App.,

infra, 56, the Ninth Circuit held that Respondents were

motivated by a desire to “avoid interference with a group’s

religious programs” or to “accommodate [a] religious

minority to let them [sic] practice their religion without

penalty.” App., infra, 9.

REASONS FOR GRANTING THE PETITION

I. THE NINTH CIRCUITS HOLDING CONFLICTS

WITH THE ESTABLISHMENT CLAUSE JURIS-

PRUDENCE OF THIS COURT AND THE OTHER

CIRCUITS.

Notwithstanding that the matter before it came

pursuant to a Rule 12(b)(6) motion to dismiss and that no

discovery or fact finding had been conducted, the Ninth

Circuit issued the following broad legal holding on the

merits: .

In conclusion, the Establishment Clause does not

bar the government from protecting an histori-

cally and culturally important site simply because

the site’s importance derives at least.in part from

its sacredness to certain groups.

App., infra, 13. The Ninth Circuit cites no authority for

this broad holding, which conflicts with the holdings of

this Court, the Ninth Circuit, and other Circuits.

A. The Ninth Circuit’s Holding Ignores the

Test Set Forth by this Court in Lemon uv.

Kurtzman.

In Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971),

this Court held that government action does not offend the

Establishment Clause if it: (1) has a secular purpose; (2)

does not have the principal or primary effect of advancing

or inhibiting religion; and (3) does not foster an excessive

entanglement with religion.

1. The Ninth Circuit’s Holding Conflicts

Regarding “Secular Purpose.”

The Ninth Circuit’s holding that a “secular purpose” is

served when governments seek to accommodate groups’

religion practices, App., infra, 9, ignores the requirement

that the accommodation doctrine does not come into play

unless and until some action, by government, has barred

the practice of religion and the government accommodates

religion by removing that bar. See, Lee v. Weisman, 505

U.S. 577, 607 (1992) (scope of accommodation permissible

under the Establishment Clause requires the lifting of a

discernible burden on the free exercise of religion); Alle-

gheny County v. Greater Pittsburgh ACLU, 492 U.S. 573,

601 n. 51, 59 (1989) (government efforts to accommodate

religion are constitutional only if they “remove burdens on

the free exercise of religion”).

Moreover, the Ninth Circuit cites no legal precedent

holding that a “secular purpose” is served when govern-

ments bar people from using their private property “to

accommodate” (or to avoid interference with) religious

groups. App., infra, 9. The accommodation doctrine pro-

vides no such authority.

2. The Ninth Circuit’s Holding Conflicts

Regarding “Primary Effect.”

The Ninth Circuit’s claim that “the central role of

religion in human societies” supports its_holding that the

Establishment Clause does not bar Respondents’ prohibi-

tion against Cholla’s use of its property contains not a

single legal precedent; instead, the Ninth Circuit waxes

eloquent about religious sites that are also historic. App.,

infra, 10.

Not surprisingly, given the controversial nature of

Establishment Clause jurisprudence, “the central role of

religion in human societies” has not prevented this Court,

the Ninth Circuit, and other federal circuits from holding

that government often improperly abandons its neutrality

regarding religion. See, Board of Educ. of Kiryas Joel

Village School Dist. v. Grumet, 512 U.S. 687, 696 (1994)

(finding that the Establishment Clause “compels the State

to pursue a course of ‘neutrality toward religion, favoring

neither one religion over others nor religious adherents

collectively over nonadherents”); Prince v. Jacoby, 303 F.3d

1074, 1092 (9th Cir. 2002) (“a significant factor in evaluat-

ing whether a governmental program violates the Estab-

lishment Clause is its neutrality toward religion”); U.S. v.

Carroll, 567 F.2d 955, 957 (10th Cir. 1977) (Establishment

Clause “insures governmental neutrality in religious

matters”).

Moreover, the Ninth Circuit’s determination that

Establishment Clause complainants, in order to maintain

their constitutional challenge to government action, must

assert that the government refuses to advance their

religion is totally without merit. App., infra, 11. Advance-

ment of any religion, not the advancement of some relig-

ions and not of others, is the gravamen of an

Establishment Clause violation. See, Board of Educ. of

Kiryas Joel Village School Dist., 512 U.S. at 696.

Finally, the Ninth Circuit cites no case, because none

exists, holding that a government does not violate the

Establishment Clause when it bars a person from using

his private property because others consider his land

“sacred.” App., infra, 8-13.

3. The Ninth Circuit’s Holding Conflicts

Regarding “Excessive Entanglement.”

The Ninth Circuit’s holding that Respondents’ actions

on behalf of the Tribes in barring Cholla’s use of its private

property was a “routine administrative contact[]” does not

find support in the cases upon which the Ninth Circuit

relied. App., infra, 12. In fact, the lead role of the Indians

in Respondents’ actions against Cholla constitutes the

“excessive entanglement” against which this Court has

ruled. See, Lyng v. Northwest Indian Cemetery Protective

Ass’n, 485 U.S. 439, 451-52 (1988) (demands for privacy in

a National Forest considered sacred by Indians cannot

justify the government’s closure of public lands, even

temporarily); see also, Badoni v. Higginson, 638 F.2d 172,

179 (10th Cir. 1980) (“Issuance of regulations to exclude

tourists completely ... for the [] purpose of aiding [Indi-

ans’] conduct of religious ceremonies would seem a clear

violation of the Establishment Clause”).

Moreover, the Ninth Circuit’s assertion as to the types

of allegations that must be made to show “excessive

entanglement,” App., infra, 13, finds no support in Estab-

lishment Clause jurisprudence. See, Lynch v. Donnelly, 465

U.S. 668, 691 (1984) (“what is crucial is that a government

practice not have the effect of communicating a message of

government endorsement or disapproval of religion”).

B. The Ninth Circuit’s Holding Contains None

of the Analysis Required by this Court and

the Circuits if Challenged Religious Sym-

bols Contain Historical and Cultural Fea-

tures.

1. The Mere Presence of Historical or Cul-

tural Features Does Not Automatically

Render the Display of a Religious Sym-

bol Constitutional.

This Court’s Establishment Clause analysis asks

whether the government has “demonstrate[d] a preference

for one particular sect or creed []” that may reasonably be

perceived as governmental endorsement of religion,

Allegheny County, 492 U.S. at 605; see also, Lynch, 465

_ US. at 687 (O’Connor, J., concurring), because the Estab-

lishment Clause “prohibits government from appearing to

take a position on questions of religious belief. . . .” Alle-

gheny County, 492 U.S. at 593-94. This Court applies this

analysis even when the religious symbols in question have

historical or cultural features.

For example, in Allegheny County; this Court held

that a créche, which was topped with an angel bearing a

banner proclaiming “Gloria in Excelsis Deo!”, violated the

Establishment Clause because the display could be seen as

a governmental observance of Christmas “as a Christian

holy day.” Jd. 601. Thus, despite the créche’s historical and

cultural significance in the Christian religion, its display

by the county was unconstitutional. Jd. at 598.

In another example, the Ninth Circuit held that,

although a cross may have historical and cultural signifi-

cance as a war memorial and, thus, a purportedly secular

purpose, observers might reasonably perceive a govern-

mental display of such a religious symbol on public prop-

erty as government endorsement of the Christian faith.

See, Buono v. Norton, 371 F.3d 543 (9th Cir. 2004) (pres-

ence of cross designated as a war memorial in a national

preserve violated the Establishment Clause); Separation

of Church and State Committee v. City of Eugene, 93 F.3d

617 (9th Cir. 1996) (Latin cross in a city park that was a

memorial in honor of veterans violated Establishment

Clause). In both Buono and Separation of Church and

State Committee, the Ninth Circuit held that, despite the

historical and cultural significance of the symbols as war

memorials, the display of these symbols violated the

Establishment Clause under Lemon and Alleghany be-

cause a person could reasonably perceive the governments’

display of the crosses as endorsement of religion. See,

Buono, 371 F.3d at 550; Separation of Church and State

Committee, 93 F.3d at 619-20.

The Ninth Circuit’s ruling in Cholla that Respondents

may bar Cholla from using its land because Cholla’s land

is both sacred and historically and culturally important to

American Indians conflicts with the holding of this Court

in Allegheny County. This Court should grant this petition

to resolve this conflict.

2. Two Cases Now Before this Court Pre-

sent the Issue of Whether the Presence

of Historical or Cultural Features in a

Religious Symbol Save It from a Ruling

that Its Display is Unconstitutional.

There are two cases whose petitions for writ of certio-

rari were granted that are now before this Court: Van

Orden v. Perry, 351 F.3d 173 (5th Cir. 2003), cert. granted,

125 S.Ct. 310 (2004); and ACLU of KY, et al. v. McCreary

County, et al., 354 F.3d 438 (6th Cir. 2003), cert. granted,

125 S.Ct. 346 (2004).

Both cases speak to the very issue addressed by the

Ninth Circuit in its broad ruling, that is, whether the mere

presence of historical or cultural features in a religious

display save it from a ruling that its display is unconstitu-

tional.’ App., infra, 13. For example, in Van Orden, the

State of Texas argues that a monument that contains the

Ten Commandments has historical significance and

? Van Orden and McCreary County ask whether the display, in a

public place, of a monument that includes the Ten Commandments,

which Jews and Christians believe were Written in stone by God,

constitutes government endorsement of religion. Cholla asks whether

Respondents’ endorsement of the religious beliefs of some American

Indians that Woodruff Butte, a geological feature, is “sacred” is

unconstitutional. Neither the monument in Van Orden or McCreary

County, nor the geological feature-in Cholla is, in and of itself, offensive

to the Constitution. When a government, however, endorses the

significance that religious adherents affix to either of those pieces of

stone then that government has run afoul of the Establishment Clause.

See, Allegheny County, 492 U.S. at 590-91.

therefore does not offend the Establishment Clause. See,

Van Orden, 351 F.3d at 177. In McCreary County, three

Kentucky counties argue that their display of the Ten

Commandments serves a secular purpose because the Ten

Commandments were: “part of the foundation of American

Law and Goverriment .. . [and] played a significant role in

the foundation of our system of law and government(]} and

...in the development, origins or foundations of American

or Kentucky law... .” McCreary County, 354 F.3d at 446-

47.

Given that the question in Cholla is remarkably

similar to that presented in Van Orden and McCreary

County, this Court should hold Cholla aside until those

cases are decided. At that time, certiorari should be

granted in Cholla and it should be reversed and remanded

to the Ninth Circuit with instructions to follow the rulings

in Van Orden and McCreary.

Il. THE NINTH CIRCUIT’S DECISION CON-

FLICTS WITH THIS COURT’S HOLDINGS IN

SWIERKIEWICZ v. SOREMA AND CONLEY v.

GIBSON.

A. Cholla’s Establishment Clause Claim May

Not be Held to a Heightened Pleading Stan-

dard.

1. This Court has Barred a Requirement that

a Plaintiff Plead a Prima Facie Case.

In Swierkiewicz v. Sorema, 534 U.S. 506 (2002), this

Court unanimously rejected any requirement that a

plaintiff plead facts establishing a prima facie case, as

required for a limited number of exceptions under Federal

Rule of Civil Procedure 9(b), because that requirement

———

would substitute an “evidentiary standard [for] a pleading

requirement.” Swierkiewicz, 534 U.S. at 510.° Instead,

federal courts should “rel[y] on liberal discovery rules and

summary judgment motions to define disputed facts and

issues and to dispose of unmeritorious claims.” Swierkiewicz,

534 U.S. at 513. Furthermore, “[bjefore discovery has un-

earthed relevant facts and evidence, it may be difficult to

define the precise formulation of the required prima facie

case.” Id. Finally, because a “prima facie case operates as a

flexible evidentiary standard, it should not be transposed

into a rigid pleading standard. . . .” Id.

Nonetheless, the Ninth Circuit ignored the holding of

this Court in Swierkiewicz and held that Cholla’s First

Amended Complaint was inadequate because Cholla had

failed to establish a prima facie Establishment Clause

case under Lemon. App., infra, 8-13. For example, accord-

ing to the Ninth Circuit: “Cholla has alleged no facts that

would support a conclusion that [Respondents] were not

motivated at least in part by [a] secular purpose[,]” App.,

infra, 9; “[t]here is no suggestion that [Respondents] favor

tribal religion over other religions or that they would not

protect sites of historical, cultural, and religious impor-

tance to other groups|,]” App., infra, 11; “Cholla has not

alleged facts that would support an inference that [Re-

spondents’] actions foster excessive government entangle-

ment with religion|[,]” App., infra, 12; and “Cholla does not

allege that [Respondents] participate in the Tribe's reli-

gious practices, inquire about the substance of their

* Although Swierkiewicz addressed heightened pleading require-

ments in discrimination cases, it declared that “complaints in these

cases, as in most others, must satisfy only the simple requirements of

Rule 8(a).” Swierkiewicz, 534 U.S. at 513 (emphasis added).

religious views, or monitor their religious practices.” App.,

infra, 13.

The prima facie case under Lemon that the Ninth

Circuit demands Cholla allege, however, is an evidentiary

standard, not a pleading requirement. This Court has

never ruled that the requirements for establishing a prima

facie Establishment Clause violation under Lemon also

apply to the pleading standard that plaintiffs must satisfy

in order to survive a Rule 12(b) motion to dismiss. Instead,

this Court has held that heightened pleading standards

conflict with Rule 8(a)(2), which provides that a complaint

must only include “a short and plain statement of the

claim showing that the pleader is entitled to relief.”

Swierkiewicz, 534 U.S. at 512.

In Swierkiewicz, this Court ruled that “Rule 8(a)’s

simplified pleading standard applies to all actions, with

limited exceptions.” Jd. at 513. The only notable exception

lies in Rule 9(b), which provides for greater particularity

in all pleadings of fraud or mistake. However, this Court

has refused to extend such exceptions to other actions. See,

Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 507 U.S. 163 (1993) (courts could not

impose a heightened pleading standard on plaintiffs

alleging § 1983 claims against municipalities); Crawford-

El v. Britton, 523 U.S. 574 (1998) (courts should not

establish heightened pleading standards regarding im-

proper motive in constitutional tort cases brought against

individual defendants). Just as Rule 9(b) makes no refer-

ence to claims of employment discrimination, municipal

liability under § 1983, or improper motive in constitutional

tort cases, neither does it mention an Establishment

Clause claim. Thus, as in these cases “as in most others,”

Cholla “must satisfy only the simple requirements of Rule

8(a)” instead of pleading a prima facie Establishment

Clause case. See, Swierkiewicz, 534 U.S. at 513.

2. An Establishment Clause Claim May

Not Require Proof of All the Elements of

Lemon v. Kurtzman.

This Court instructed in Swierkiewicz that “the

precise requirements of a prima facie case can vary de-

pending on the context and were never intended to be

rigid, mechanized, or ritualistic.” 534 U.S. at 512 (internal

quotations omitted). This Court’s Establishment Clause

jurisprudence demonstrates the wisdom of Swierkiewicz

since the Lemon framework does not apply in every

Establishment Clause case.

For instance, if the nature of the religious activity is

so pervasive as to conflict with settled Establishment

Clause precedent, then a plaintiff may prevail without

proving all of the elements of the Lemon test. See, Lee, 505

U.S. at 577 (striking down graduation prayer without

applying Lemon); Marsh v. Chambers, 463 U.S. 783 (1983)

(upholding legislative prayer in Establishment Clause

challenge without applying Lemon because of the unique

history of the practice); Larson v. Valente, 456 U.S. 228

(1982) (when a government statute or practice explicitly

discriminates against a certain religious group, the Lemon

test is not useful). Furthermore, this Court has employed

variations of the Lemon test in cases involving government

speech on religious topics. See, Allegheny County, 492 U.S.

at 573 (applying endorsement test, which is refinement of

second prong of Lemon test, in case involving religious

symbols on government property); Lynch, 465 U.S. at 687,

694 (O’Connor, J., concurring) (“Every government practice

must be judged in its unique circumstances to determine

Pe eck eS pike aE PE eee pees Pe

whether it constitutes an endorsement or disapproval of

religion.”).

B. Cholla’s Complaint Meets Notice Pleading

Requirements as Defined by this Court’s

Holding in Conley v. Gibson.

Rule 8(a)(2) provides that a »omplaint must include

only “a short and plain statement of the claim showing

that the pleader is entitled to relief,” which “give[s] the

defendant fair notice of what the plaintiff’s claim is and

the grounds upon which it rests.” Conley v. Gibson, 355

U.S. 41, 47 (1957). In its Complaint, Cholla satisfied the

requirements of Rule 8(a)(2) by establishing that it is

entitled to relief for its Establishment Clause claim and by

putting Respondents on notice as to the nature and basis

of Cholla’s claim. For example, Cholla’s Complaint alleges,

in part:

88. Defendants maintain a policy against

the use of Woodruff Butte as a materials source.

89. The reason for this policy is that De-

fendants believe Woodruff Butte is considered

sacred by the Hopi, Zuni, and/or Navajo Indian

Tribes based on religious grounds.

90. ADOT actively maintains a policy and

has implemented this policy against use of Wood-

ruff Butte by first promulgating, then subse-

quently enforcing the challenged regulations

against Cholla.

91. The purpose of the challenged regula-

tions, Defendants’ policy, and the denial of

Cholla’s application for a commercial source

number is not secular. It is in fact based on spe-

cific religious grounds.

92. The principle and/or primary effect of

the challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a com-

mercial source number is the advancement and/

or protection of religion.

93. The challenged regulations, Defen-

dants’ policy, and the denial of Cholla’s applica-

tion for a commercial source number foster an

excessive governmental entanglement with relig-

ion.

94. The challenged regulations, Defendants’

policy, and the denial of Cholla’s application for a

commercial source number, together and sepa-

rately, constitute governmental endorsement of re-

ligion pursuant to the beliefs and practices of Hopi,

Zuni, and/or Navajo Indian Tribes.

95. As a direct result of the challenged

regulations and Defendants’ formulation, imple-

mentation, and enforcement of their policy,

- Cholla is unable to bid for and/or win materials

subcontracts for ADOT highway construction

contracts. The effect of this direct result violates

Cholla’s rights against establishment of religion

under the First Amendment to the United States

Constitution.

App., infra, 68-69.

Nonetheless, the Ninth Circuit ignored the liberal

notice pleading requirements defined by this Court in

Conley and, instead, subjected Cholla’s Complaint to a

more rigid pleading standard. In so doing, the Ninth Circuit

erroneously held that Cholla’s Complaint was inadequate

because Cholla had failed to allege a prima facie case under

Lemon. See, Swierkiewicz, 534 U.S. at 512. For example,

although Cholla alleged that Respondents’ policy and

aan

actions barring Cholla’s use of its private property were

“not secular” and, were “in fact based on specific religious

grounds,” App., infra, 68, the Ninth Circuit faulted Cholla

for not speculating on what “secular purposes” Respon-

dents might argue they had sought to serve and for not

setting forth in its Complaint “facts that would support a

conclusion that [Respondents] were not motivated at least

in part by” secular purposes. App., infra, 9.

In another instance, although Cholla alleged that the

purpose and primary effect of Respondents’ actions was

the “advancement” and “endorsement of religion pursuant

to the beliefs and practices of [the] Tribes[,]” App., infra,

69, the Ninth Circuit held that Cholla’s Complaint was

incomplete because “there is no suggestion that [Respon-

dents] favor tribal religion over other religions.” App.,

infra, 10-11.

In a third example, although Cholla alleged that the

“challenged regulations, [Respondents’] policy, and the

denial of Cholla’s application for a commercial source

number foster an excessive governmental entanglement

with religion,” App., infra, 69, the Ninth Circuit held that

Cholla should have plead “that [Respondents] participate

in the Tribe’s religious practices, inquire about the sub-

stance of their religious views, or monitor their religious

practices.” App., infra, 13.

Rule 8(a)(2) and this Court’s holding in Conley were

satisfied by Cholla’s allegations and claim for relief under

the Establishment Clause. Accepted as true, Cholla’s

allegations suggest a violation of the Establishment

Clause under each part of the Lemon test. Cholla is not

required, as the Ninth Circuit demands in this instance, to

anticipate the “facts” that Respondents may allege in their

defense and allege facts that will refute Respondents’

“facts.” Id. Such a requirement of “greater specificity for

particular claims is a result that must be obtained by the

process of amending the Federal Rules, and not by judicial

interpretation.” Swierkiewicz, 534 U.S. at 515 (internal

quotations omitted).

C. The Ninth Circuit Failed to Accept the Al-

legations of Cholla’s Complaint as True and

Instead Assumed Facts Not in Evidence.

In determining whether the District Court properly

dismissed Cholla’s Complaint pursuant to Respondents’

Rule 12(b)(6) motion, the Ninth Circuit was required to

accept as true all of the factual allegations contained in

Cholla’s Complaint. See, Leatherman, 507 U.S. at 164.

Nonetheless, the Ninth Circuit not only attacked, rather

than assume, the truth of Cholla’s allegations, the Ninth

Circuit also speculated as to facts that would result in a

finding that Cholla’s Complaint was without merit.

1. The Ninth Circuit Assumed Facts Re-

garding a “Secular Purpose.”

The Ninth Circuit held that Respondents had a

“secular purpose” in barring Cholla’s use of its private

property, that is, to carry out “state construction projects

in a manner that does not harm a site of religious, histori-

cal, and cultural importance to several Native American

‘ The Ninth Circuit held, for example, that Cholla’s allegation, in

its Complaint, that “[t]he principle and/or primary effect of [Respon-

dents’ actions] is the advancement and/or protection of religion,” App.,

infra, 69, is without merit. App., infra, 10.

groups and the nation as a whole.” App., infra, 9. That

conclusion is based on what Respondents argued in their

Motion to Dismiss. State Defendants’ Motion to Dismiss at

10-13. Cholla alleged in its Complaint, however, that the

sole reason for the bar on Cholla’s use of its property was

that Cholla’s land is sacred to the Tribes. App., infra, 68. It

is this allegation by Cholla that must be assumed to be

true, not Respondents’ arguments. See, Leatherman, 507

U.S. at 164.

Furthermore, the Ninth Circuit, citing Kong v. Scully,

341 F.3d 1132, 1140 (9th Cir. 2003), held that Respondents

may have been motivated by a desire to “avoid interfer-

ence with a group’s religious programs,” and, citing May-

weathers v. Newland, 314 F.3d 1062, 1068 (9th Cir. 2002),

that Respondents may have been seeking the “[a]ccomo-

dation of a religious minority to let them [sic] practice

their'religion without penalty.” App., infra, 9. The Ninth

Circuit reached this conclusion contrary to the facts

alleged in Cholla’s Complaint. For example, Woodruff

Butte is private property; therefore, no one has access to

Woodruff Butte to conduct a “religious program|[]” or “to

practice [] religion without penalty.” App., infra, 56. Thus,

these could not have been the “secular purposes” that

motivated Respondents to bar Cholla from using its

property.

2. The Ninth Circuit Assumed Facts Re-

garding “Primary Effect.”

The Ninth Circuit, as part of its lengthy discourse on

‘the “central role of religion in human societies,” declared,

“[t]he Establishment Clause does not require governments

to ignore the historical value of religious sites.” App., infra,

10. In so holding, the Ninth Circuit assumed that Cholla’s

private property has “historical value” and “historical

significance” to some American Indians. App., infra, 10.

Cholla’s Complaint, however, alleges that the sole reason

for Respondents’ policy against the use of Woodruff Butte

is the advancement and protection of the Tribes’ religion.

App., infra, 57, 66-69.

Furthermore, the Ninth Circuit, in holding that

Respondents’ actions do not advance religion, assumed

that Respondents barred Cholla from using its private

property in order not to “interfere with the Tribes’ reli-

gious practices... .” App., infra, 11. No such fact was ever

adjudicated. Yet, the one fact that is known because it was

alleged in Cholla’s Complaint — that Woodruff Butte is

private property — demonstrates that “the Tribes’ religious

practices” could not have taken place there and, thus,

would not be “interfere[d] with” by Cholla’s use of its

property.

3. The Ninth Circuit Assumed Facts as to

“Excessive Entanglement.”

Cholla alleged, in response to assertions by the Tribes

that Woodruff Butte — Cholla’s private property — is

“sacred” to them, that Respondents did as the Tribes

demanded, that is, Respondents barred Cholla from using

its private property. App., infra, 54-55, 97, 64-65, 67.

Cholla also alleged that Respondents’ actions fostered

excessive government entanglement with religion. App.,

infra, 69. Nonetheless, the Ninth Circuit ignored the facts

in Cholla’s well-pled Complaint and assumed that Cholla’s

only factual allegation was that “the Tribes were con-

sulted.” App., infra, 12.

Moreover, the Ninth Circuit assumed that the nature

- of the Tribes involved here was “pervasively sectarian” and

hence, when Respondents did as the Tribes asked, Re-

spondents were not excessively entangled with religion.

App., infra, 12. The nature of the Tribes, as well as the

nature of the demands they made in this case, require

factual finding, not assumptions at this stage of the

proceedings.

The Ninth Circuit’s holding that Cholla must allege a

prima facie Establishment Clause case under Lemon to

survive a Rule 12(b)(6) motion to dismiss conflicts with

this Court’s Establishment Clause jurisprudence and its

holdings in Swierkiewicz and Conley. Accordingly, this

Court should grant the Petition to resolve these conflicts.

CONCLUSION

For the foregoing reasons, Cholla Ready Mix, Inc.,

respectfully requests that this Court grant this petition for

a writ of certiorari.

Respectfully submitted,

WILLIAM PERRY PENDLEY, Esq.*

*Counsel of-Record

CHRISTOPHER T. MASSEY, Esq.

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Petitioner

Dated: January 12, 2005.

INDEX

Page

U.S. Court of Appeals, Ninth Circuit - OPINION -

affirming District Court’s dismissal of Cholla's

CMRI RAIS 2..00000sccrccsccessrccssesaceccosenccoccnasssescccsscoosceses App. 1

U.S. District Court for Arizona - ORDER - grant-

ing Cholla’s Motion for Leave to File a First

Amended Complaint; granting State Defendants’

Motions to TRgmIO..........00000cccsrrcceccarsscsorccesccosessosecs App. 16

U.S. District Court for Arizona - ORDER — denying

Cholla’s Motion for Reconsideration; granting

Cholla’s request for certification of final judg-

ment against State Defendants ..................:.:seeeee App. 20

U.S. District Court for Arizona - JUDGMENT -

pursuant to Rule 54(b), judgment entered as to

Cae Bbete TISTRGATIES......00.cccccccccsecccccccccscosccccccssssees App. 21

U.S. Court of Appeals, Ninth Circuit — JUDG-

MENT - affirming the judgment of the District

sa oi 2a se siaalinledneivnenenmeneenquontepssnbeaunonnneted App. 22

U.S. Court of Appeals, Ninth Circuit - ORDER -

denying Cholla’s Petition for Rehearing en banc ....App. 23

United States Constitution Amendment I................ App. 25

Arizona Department of Transportation (ADOT)

Standard Specifications for Road and Bridge

CGR BIO nnn csavecnccnascnccesassscssenasccnserenscesnened

Cholla’s First Amended Complaint

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHOLLA READY Mk, INC.,

Plaintiff-Appellant,

WILLIAM CIVISH, BLM Safford,

Arizona Field Office District

Manager; VICTOR MENDEZ,

Secretary of the Department

of Transportation (ADOT);

JEFF SwAN, ADOT Holbrook

District Engineer; WILLIAM

BELT, ADOT Environmental

Planning Services Department;

THOR ANDERSON, ADOT

Official; RICHARD DUARTE,

ADOT Environmental Planning

Section Manager; BETTINA

ROSENBERG, ADOT Historic

Preservation Coordinator;

JAMES GARRISON, Arizona

State Historic Preservation

Officer; ROBERT GASSER,

Arizona Parks Department

Compliance Officer,

Defendants-Appellees.

No. 03- 15423

D.C. No.

CV-02-01185-FJM

OPINION

Appeal from the United States District Court

for the District of Arizona

Frederick J. Martone, District Judge, Presiding

Argued and Submitted

May 12, 2004 — San Francisco, California

App. 2

Filed September 1, 2004

Before: Betty B. Fletcher, Stephen S. Trott, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Betty B. Fletcher

COUNSEL

William Perry Pendley, Christopher T. Masey [sic], Moun-

tain States Legal Foundation, Lakewood, CO, for the

plaintiff-appellant.

James N. Smith, Jr., Joe Acosta, Jr., Assistant Attorneys

General, Phoenix, AZ, for the defendants-appellees.

OPINION

B. FLETCHER, Circuit Judge:

Cholla Ready Mix, Inc. (“Cholla”) appeals the district

court’s dismissal of its complaint alleging that Arizona

state officials’ policy against using materials mined from

Woodruff Butte in state construction projects violates its

rights under the Establishment Clause, 42 U.S.C. §§ 1981,

1983, and 2000d, and the Arizona Constitution. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

Dale McKinnon, who is Cholla’s sole shareholder, and

his family own a portion of Woodruff Butte.’ In 1990, the

* The background is drawn primarily from the complaint, because

the court considers the facts alleged therein to be true for the purposes

of reviewing a dismissal pursuant to Fed. R. Civ. P. 12(b)6).

App. 3

McKinnon family leased part of Woodruff Butte and began

mining it for aggregate materials used primarily for road

construction. Shortly after mining operations began, the

Hopi Tribe, Zuni Pueblo, and Navajo Nation (collectively,

“the Tribes”) passed resolutions against the mining be-

cause of Woodruff Butte’s religious, cultural, and historical

significance to these groups. In June 1991, the Arizona

Department of Transportation (ADOT) granted a commer-

cial source number allowing materials mined from the

Butte to be used in state highway construction projects. In

September 1991, the McKinnons bought the mined portion

of Woodruff Butte.

The mining of Woodruff Butte led to a variety of

disputes and litigation involving the Tribes, Cholla,

construction contractors, and various Arizona and federal

officials and agencies. In response, ADOT adopted strate-

gies to discourage the use of materials from Woodruff

Butte in state construction projects. In 1999, ADOT

promulgated new commercial source regulations, which

require each applicant for a commercial source number to

submit an environmental assessment (EA) that considers,

inter alia, adverse effects on places eligible for listing on

the National Register of Historic Places (NRHP). Woodruff

Butte was declared eligible for listing on the NRHP in or

around 1990. On June 26, 2000, ADOT denied Cholla’s

application for a new commercial source number because

of the projected adverse effects on historic property on

Woodruff Butte. Without a commercial source number,

Cholla cannot provide aggregate materials for state

_ highway construction projects, but Cholla remains free to

sell its materials in the private market.

Le ~

App. 4

On June 25, 2002, Cholla filed suit in district court

against various government’ officials alleging that the

policy against using materials from the Butte in state

construction projects violates Cholla’s rights under the

Establishment Clause, federal civil rights laws, and the

Arizona Constitution. The district court granted Cholla’s

motion for leave to file an amended complaint, but then

granted the state defendants’ motion to dismiss. After the

district court denied Cholla’s motion for reconsideration

and granted its request for certification of final judgment

against the state defendants, Cholla timely filed a notice of

appeal to this court.

II. STANDARD OF REVIEW

The court reviews de novo dismissals on the basis of

Eleventh Amendment immunity. Lovell v. Chandler, 303

F.3d 1039, 1050 (9th Cir. 2002). We also review de novo

dismissals on the basis of a statute of limitations. Mann v.

Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). Like-

wise, we review de novo dismissals for failure to state a

claim under Fed. R. Civ. P. 12(b)(6), accepting all facts

alleged in the complaint as true and construing them in

the light most favorable to the plaintiff. Karam v. City of

Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003). “However,

the court is not required to accept legal conclusions cast in

the form of factual allegations if those conclusions cannot

reasonably be drawn from the facts alleged.” Clegg v. Cult

Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

“Nor is the court required to accept as true allegations

* Cholla sued state and federal officials, but the federal defendants

were dismissed by the parties’ joint stipulation, and the state officials

are the only remaining defendants in the case.

————————

App. 5

that are merely conclusory, unwarranted deductions of

fact, or unreasonable inferences.” Sprewell v. Golden State

Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

III. DISCUSSION

A. Eleventh Amendment Immunity

Cholla appeals the district court’s holdings that the

Eleventh Amendment bars its state law claims and its

claim for damages under Title VI, 42 U.S.C. § 2000d.°

1. Damages under Title VI

Congress abrogated state immunity from damages

under Title VI. See 42 U.S.C. § 2000d-7(a); Alexander v.

Sandoval, 532 U.S. 275, 280 (2001); Miranda B. v. Kitz-

haber, 328 F.3d 1181, 1188-89 (9th Cir. 2003). Although we

affirm on other grounds, we conclude that the district

court erred by holding that the Eleventh Amendment bars

Cholla’s claims for damages under § 2000d.

2. State Law Claims

As the district court held, all of Cholla’s state law

claims are barred by the Eleventh Amendment, which

precludes the adjudication of pendent state law claims

against nonconsenting state defendants in federal courts.

See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 106 (1984); Raygor v. Regents of Univ. of Minn., 534

* Cholla has waived any challenge to the district court’s holding

that the Eleventh Amendment bars its request for damages under

§ 1981.

App. 6

U.S. 533, 540-541 (2002); Ashker v. Cal. Dep’t of Corr., 112

F.3d 392, 394 (9th Cir. 1997).*

Cholla’s reliance on Piatt v. MacDougall, 773 F.2d

1032 (9th Cir. 1985) to revive its state law claims as a

substantive part of its § 1983 claim is misplaced. Piatt

held that where a state statute provides prisoners a right

to compensation for their work, they can bring a § 1983

claim alleging that the state revoked their right to pay

without due process. Jd. at 1035-37. Piatt recognizes that,

because a due process claim necessarily fails if the plain-

tiff has no property interest in the relevant property, a

federal due process claim may succeed or fail depending on

whether the § 1983 plaintiff has a cognizable property

interest under state law. Id. at 1035. However, Piatt does

not permit plaintiffs to sue in federal court under § 1983

solely for violations of state law. Thus, Piatt is of no help to

Cholla.

B. Statutes of Limitations

The statutes providing Cholla’s federal causes of

action, 42 U.S.C. §§ 1981, 1983, and 2000d, do not contain

their own statutes of limitations, so courts borrow the

most appropriate state statute of limitations. See Wilson v.

Garcia, 471 U.S. 261, 268 (1985). For these claims, we

borrow Arizona’s statute of limitations for personal injury

claims. See Wilson, 471 U.S. at 276-80 (holding that the

statute of limitations for personal injury claims applies in

* We have recognized an exception to Pennhurst where the state

official is sued in a personal capacity. See, e.g., Ashker, 112 F.3d at 394-

95. All defendanis in this case were sued in their official capacities, so

this exception does not apply.

App. 7

§ 1983 suits); Addisu v. Fred Meyer, Inc., 198 F.3d 1130,

1140 (9th Cir. 2000) (§ 1981 claims) (citing Goodman v.

Lukens Steel Co., 482 U.S. 656, 661-62 (1987)); Taylor v.

Regents of Univ. of Cal., 993 F.2d 710, 711-12 (9th Cir.

1993) (§ 2000d claims).° The applicable statute of limita-

tions for personal injury claims in Arizona is two years.

See Ariz. Rev. Stat. § 12-542; TwoRivers v. Lewis, 174 F.3d

987, 991 (9th Cir. 1999). Thus, the district court correctly

concluded that Cholla’s only timely claim is its challenge

to the rejection of its application for a commercial source

number. This claim brings into play Cholla’s allegations of

an Establishment Clause violation and discrimination on

account of race.

Cholla argues that under the continuing violations

doctrine, it may challenge defendants’ ongoing policy

against the use of materials from Woodruff Butte. Discrete

acts are not actionable if time barred, even if related to-

acts alleged in timely filed charges. See National R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113-14 (2002);

Carpinteria Valley Farms, Ltd. v. County of Santa Bar-

bara, 344 F.3d 822, 828-29 (9th Cir. 2003); RK Ventures,

Inc. v. City of Seattle, 307 F.3d 1045, 1061-62 (9th Cir.

2002). Nonetheless, the time bar makes little difference to

Cholla’s requests for declaratory and injunctive relief. By

* A four-year statute of limitations governs actions arising under

federal statutes enacted after December 1, 1990. 28 U.S.C. § 1658. This

uniform limitations period applies, for example, to hostile work

environment and wrongful termination claims under § 1981 that were

made possible by the Civil Rights Act of 1991. See Jones v. R.R.

Donnelley & Sons Co., 124 S.Ct. 1836, 1845-46 (2004). However,

Cholla’s claims were not made possible by a post-1990 statute or

amendment and thus are not covered by § 1658’s four-year limitations

period. See id.

App. 8

challenging the denial of Cholla’s application for a com-

mercial source number, without which Cholla’s aggregate

materials cannot be used in state construction projects,

Cholla is challenging Arizona’s policy against using mate-

rials from Woodruff Butte. Moreover, acts occurring more

than two years before Cholla filed suit may be relevant

background material in support of its timely claim. Mor-

gan, 536 U.S. at 113.°

C. Establishment Clause Claim

Cholla alleges that the defendants’ policy against

using materials from Woodruff Butte in state construction

projects violates the Establishment Clause of the First

Amendment. On appeal, Cholla emphasizes the liberal

notice pleading requirements and argues that the district

court improperly evaluated the strength of Cholla’s claim.

Accepting as true the facts alleged and construing them in

the light most favorable to Cholla, we conclude that the

district court properly dismissed this claim. No evidence

could bolster Cholla’s Establishment Clause claim because

it is premised on flawed analysis of the governing law.

Government conduct does not violate the Establish-

ment Clause if (1) it has a secular purpose, (2) its principal

or primary effect is not to advance or inhibit religion, and

(3) it does not foster excessive government entanglement

° We note that the district court held that a two-year statute of

limitations applies to all of Cholla’s claims, but it appears that a one-

year statute of limitations governs Cholla’s state law claims. See Ariz.

Rev. Stat. § 12-821; Flood Control Dist. of Maricopa County v. Gaines,

43 P.3d 196, 200 (Ariz. Ct. App. 2002). Nevertheless, the district court

correctly held that the Eleventh Amendment bars Cholla’s state law

claims.

App. 9

with religion. See, e.g., Lemon v. Kurtzman, 403 U.S. 602,

612-13 (1971). Particular attention is paid to whether the

challenged action has the purpose or effect of endorsing

religion. County of Allegheny v. ACLU, 492 U.S. 573, 592

(1989).

1. Secular Purpose

It is clear from Cholla’s complaint that defendants’

actions have the secular purpose of carrying out state

construction projects in a manner that does not harm a

site of religious, historical, and cultural importance to

several Native American groups and the nation as a whole.

Putting aside for now the historical and cultural

importance of Woodruff Butte, the secular purpose prong

“does not mean that the law’s purpose must be unrelated

to religion — that would amount to a requirement that the

government show a callous indifference to religious

groups.” Corp. of Presiding Bishop v. Amos, 483 U.S. 327,

335 (1987) (internal quotation marks omitted). Carrying

out government programs to avoid interference with a

group’s religious practices is a legitimate, secular purpose.

Id.; Kong v. Scully, 341 F.3d 1132, 1140 (9th Cir. 2003)

(“Accommodation of a religious minority to let them

practice their religion without penalty is a lawful secular

purpose.”); Mayweathers v. Newland, 314 F.3d 1062, 1068

(9th Cir. 2002). Cholla has alleged no facts that would

support a conclusion that the state defendants were not

_ Motivated at least in part by this secular purpose. See,

e.g., Am. Family Ass’n, Inc. v. City and County of San

Francisco, 277 F.3d 1114, 1121 (9th Cir. 2002) (stating that

a practice must be wholly motivated by religious purpose

to fail the secular purpose test).

App. 10

2. Primary Effect

According to Cholla’s complaint, ADOT faced years of

controversy about the destruction of Woodruff Butte. A

federal district court in previous litigation awarded the

Hopi Tribe a preliminary injunction requiring consultation

with the Tribe before spending federal funds on a con-

struction project using materials from Woodruff Butte

because of the Butte’s historical and cultural importance.

The complaint’s descriptions of the controversy and litiga-

tion over the land; the cultural and historical importance

of Woodruff Butte in addition to its religious significance;

and the Arizona State Historic Preservation Officer’s

conclusion that the Butte is an ‘important cultural land-

mark’ are inconsistent with Cholla’s claim that advancing

religion is the principal or primary effect of defendants’

actions.

Because of the unique status of Native American

societies in North American history, protecting Native

American shrines and other culturally-important sites has

historical value for the nation as a whole, much like

Greece’s preservation of the Parthenon, an ancient Greek

temple of worship. Similarly, because of the central role of

religion in human societies, many historical treasures are

or were sites of religious worship. The Establishment

Clause does not require governments to ignore the histori-

cal value of religious sites. Native American sacred sites of

historical value are entitled to the same protection as the

many Judeo-Christian religious sites that are protected on

the NRHP, including the National Cathedral in Washing-

ton, D.C.; the Touro Synagogue, America’s oldest standing

synagogue, dedicated in 1763; and numerous churches

that played a pivotal role in the Civil Rights Movement,

App. 11

including the Sixteenth Street Baptist Church in Bir-

mingham, Alabama.

Defendants’ policy does not convey endorsement or

approval of the Tribes’ religions. See County of Allegheny,

492 U.S. at 592; Buono v. Norton, 371 F.3d 5438, 548-50

(9th Cir. 2004) (holding that maintenance of a cross on

public land violates the Establishment Clause because a

reasonable observer might see the cross as an endorse-

ment of Christianity). There is no suggestion that the

state defendants favor tribal religion over other religions

or that they would not protect sites of historical, cultural,

and religious importance to other groups.

Moreover, defendants’ policy does not advance relig-

ion, but rather implements ADOT’s decision that state

construction projects should be carried out in a way that

does not interfere with the Tribes’ religious practices or

destroy religious sites that have historical significance.

Accommodating religious practices that does not amount

to an endorsement is not a violation of the Establishment

Clause. See Hobbie v. Unemployment Appeals Comm’n of

Fla., 480 U.S. 136, 144-45 (1987) (“This Court has long

recognized that the government may (and sometimes

must) accommodate religious practices and that it may do

so without violating the Establishment Clause.”); Kong,

341 F.3d at 1139-40 (9th Cir. 2003) (holding that accom-

- modating a religious minority in the administration of

government programs does not offend the Establishment

Clause); Mayweathers, 314 F.3d at 1068-69 (9th Cir. 2002)

(holding that Congress may require states to accommodate

prisoners’ religious practices without impermissibly

advancing religion).

App. 12

3. Excessive Entanglement

Cholla has not alleged facts that would support an

inference that the defendants’ actions foster excessive

government entanglement with religion. The only fact

alleged relevant to entanglement is that the Tribes were

consulted in the process of evaluating Cholla’s application

for a commercial source number. Some level of interaction

between government and religious communities is inevita-

ble; entanglement must be “excessive” to violate the

Establishment Clause. Agostini v. Felton, 521 U.S. 203,

233 (1997); KDM ex rel. WJM v. Reedsport School Dist.,

196 F.3d 1046, 1051 (9th Cir. 1999) (noting that courts

consistently find that routine administrative contacts with

religious groups do not create excessive entanglement). In

determining whether government action creates excessive

entanglement with religion, the Supreme Court has looked

to the character and purpose of the institutions benefitted.

See Bowen v. Kendrick, 487 U.S. 589, 615-16 (1988) (con-

cluding that monitoring of government grants given to

nonprofit organizations that provide educational services

did not amount to excessive entanglement because relig-

iously affiliated organizations that may receive govern-

ment funding are not “pervasively sectarian”). The

institutions benefitted here, Native American tribes, are

not solely religious in character or purpose. Rather, they

are ethnic and cultural in character as well. See Bear

Lodge Multiple Use Ass’n v. Babbitt, 2 F. Supp. 2d 1448,

1456 (D. Wyo. 1998) (concluding that a government policy

benefiting Native American tribes did not constitute

excessive entanglement with religion because “Native

American tribes ... are not solely religious organizations,

but also represent a common heritage and culture”).

App. 13

Moreover, Cholla does not allege that the government

officials participate in the Tribe’s religious practices,

inquire about the substance of their religious views, or

monitor their religious practices. The facts alleged cannot

support the conclusion that defendants’ actions excessively

entangle the government with the Tribes’ religions.

In conclusion, the Establishment Clause does not bar

the government from protecting an historically and cul-

turally important site simply because the site’s importance

derives at least in part from its sacredness to certain

groups.

D. Discrimination Claims

Cholla alleges that the state defendants’ policy against

the use of Cholla’s aggregate in state construction projects

violates its rights under the Civil Rights Act of 1866, 42

U.S.C. § 1981, which prohibits racial discrimination in the

making and enforcement of contracts, by interfering with

its right to contract freely to sell materials mined from

Woodruff Butte. Additionally, Cholla alleges that the

defendants violated its rights under Title VI, 42 U.S.C.

§ 2000d, which prohibits racial discrimination in programs

that receive federal funding.

The district court correctly concluded that Cholla

failed to state a claim that the defendants discriminated

against it on the basis of race. Cholla’s complaint contains

vague allegations that the defendants’ policy “discrimi-

nates against Cholla in favor of the Navajo, Hopi, and

Zuni Indian Tribes.” Had Cholla a viable claim, Cholla

would have standing to sue for racial discrimination, even

though it is a corporation, if it “either suffers discrimina-

tion harm cognizable under § 1981, or has acquired an

App. 14

imputed racial identity.” Thinket Ink Info. Res., Inc. v. Sun-

Microsystems, Inc., 368 F.3d 1053, 1060 (9th Cir. 2004); see

also Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480,

1488 (9th Cir. 1995) (holding that a corporation had

standing to sue under § 1981 alleging that defendants

discriminated against it because it contracts with racial

minorities).

Cholla’s complaint does not allege that Cholla has an

imputed racial identity and does not explain how the

company suffered from racial discrimination. Cholla’s

complaint fails to allege facts from which one could infer

that Cholla has an imputed racial identity, for example the

race of Cholla’s owner, McKinnon, or of-anyone affiliated

with Cholla. Cholla’s complaint devotes itself primarily to

arguing that defendants were motivated by the religious

significance of the Butte, without alleging any facts from

which one could infer that anyone’s race in any way

motivated the state defendants’ actions. The district court

did not err in dismissing Cholla’s discrimination claims.’

E. Claim under $ 1983

Section 1983 creates a cause of action for the vindica-

tion of federal rights. See 42 U.S.C. § 1983. Cholla treats

its § 1983 claim as an independent, substantive claim.

However, “one cannot go into court and claim a ‘violation

of § 1983’ — for § 1983 by itself does not protect anyone

against anything.” Chapman v. Houston Welfare Rights

” The defendants argue that programs that receive federal funding,

rather than the individual defendants who Cholla sued, are the proper

defendants in a Title VI suit. See, e.g., Shotz v. City of Plantation, 344

F.3d 1161, 1169-70 (11th Cir. 2003); Buchanan v. City of Bolivar, 99 F.3d

1352, 1356 (6th Cir. 1996). Because Cholla failed to state a claim under

Title VI, we do not reach this question.

App. 15

Org., 441 U.S. 600, 617 (1979). “Section 1983 does not

create any substantive rights; rather it is the vehicle

whereby plaintiffs can challenge actions by governmental

officials.” Henderson v. City of Simi Valley, 305 F.3d 1052,

1056 (9th Cir. 2002). Cholla has no cause of action under

§ 1983 because it has not stated a viable claim that defen-

dants violated its federal rights.

Iv. CONCLUSION i

All of the allegations in Cholla’s complaint are barred

by the Eleventh Amendment, time barred, or fail to state a

claim upon which relief could be granted. Accordingly, the

district court’s dismissal of Cholla’s complaint is

AFFIRMED.

App. 16

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Cholla Ready Mix, Inc., ) No. CV-02-1185-PHX-FJM

Plaintiff, ‘ ORDER

vs. ) (Filed Jan. 21, 2003)

Federal Highway )

Administration, et al., :

Defendants. )

The court has before it the State Defendants’ Motion

to Dismiss (doc. 12), Plaintiff’s response (doc. 21), and the

Defendants’ reply (doc. 27). Also before the court is the

Plaintiff’s Motion for Leave to File a First Amended

Complaint (doc. 19), including an unsigned copy of the

proposed First Amended Complaint, the State Defendants’

response in opposition (doc. 28), and the Plaintiff’s reply

(doc. 29).

Initially, the court GRANTS the Plaintiff’s Motion for

Leave to File a First Amended Complaint (doc. 19). The

First Amended Complaint differs from the original com-

plaint in three significant ways. First, it explicitly alleges

claims under 42 U.S.C. §§ 1981, 1983, and 2000d. Second,

it eliminates the equal protection claim. Third, it omits

reference to monetary damages, except as available under

42 U.S.C. §§ 1981 and 2000d. We now consider the State

Defendants’ Motion to Dismiss in relation to the First

Amended Complaint.

App. 17

I. Statute of Limitations

As a preliminary matter, only one of Plaintiff’s

allegations fall within the two-year statute of limitations:

the denial of Cholla’s commercial source number pursuant

to the Historical and Cultural Resources Regulation on

June 26, 2000. All of the other factual allegations are

dismissed as time barred. ;

Il. Eleventh Amendment and Ex Parte Young

Exception

The State Defendants move to dismiss all claims on

Eleventh Amendment grounds. The Eleventh Amendment

prohibits federal courts from hearing suits brought by

private citizens against state governments, without the

state’s consent. In general, state immunity will also extend

to state officials when the state is the real party in inter-

est. Under the Ex Parte Young doctrine, however, the

Eleventh Amendment does not bar a suit against a state

official that alleges a violation of federal law and seeks

only prospective relief.

Here, the Plaintiff seeks injunctive relief and a de-

claratory judgment based on both federal and state law

claims, and monetary damages under 42 U.S.C. §§ 1981

and 2000d. Plaintiff’s claim for money damages is barred

by the Eleventh Amendment. Additionally, Plaintiff’s

demand for an “injunction directing Defendants to grant

Cholla a commercial source number,” falls beyond the

scope of the Ex Parte Young exception because “it is in fact

against the sovereign [since] the decree would operate

against the [state]” by compelling the state to act. Penn-

hurst State Sch. and Hosp. v. Haldeman, 465 U.S. 89, 101-

02 (1984) (“a suit is against the sovereign if the .. . effect

App. 18

of the judgment would be to restrain the Government from

acting, or compel it to act”). Finally, Plaintiff’s state law

claims are also barred by the Eleventh Amendment. Jd. at

106.

The Plaintiff’s remaining claims for declaratory and

injunctive relief under federal law fall within the Ex Parte

Young exception. Specifically, the Plaintiff seeks a declara-

tory judgment that the Historical and Cultural Resources

Regulation violates the Establishment Clause and 42

U.S.C. §§ 1981, 1982, and 2000d. Plaintiff further seeks an

injunction against Defendants’ continued implementation

and enforcement of that regulation.

Ill. Establishment Clause Claim

We turn now to Plaintiff’s Establishment Clause

claim. Under Lemon v. Kurtzman, 403 U.S. 602 (1971), a

government action does not violate the Establishment

Clause if it (1) has a secular purpose, (2) does not have the

principal effect of advancing or inhibiting religion, and (3)

does not foster an excessive entanglement with religion.

Plaintiff argues that it has alleged sufficient facts to state

an Establishment Clause claim under Lemon and that, as

long as the claim asserts a legal theory that is cognizable

as a matter of law, the merits of the claim are immaterial

in a 12(b)(6) motion. It is true that a motion to dismiss for

failure to state a claim should only be granted in extraor-

dinary cases where it appears beyond doubt that the

Plaintiff can prove no set of facts in support of the claim.

Yet, even taking all of the alleged facts as true, it appears

beyond doubt that Plaintiff will be unable to show that the

Defendants violated the Establishment Clause under the

standard set forth in Lemon. On its face, the Historical

App. 19

and Cultural Resources Regulation is aimed at protecting

sites of historical and cultural significance. That a pro-

tected site also has religious significance does not make

the regulation unconstitutional. Therefore, the Establish-

ment Clause claim is dismissed.

IV. Remaining Federal Claims

The remaining claims are also dismissed. Plaintiff has

failed to state a claim under 42 U.S.C. § 1981 because it

has not alleged any facts from which racial discrimination

can be inferred. White v. Wash. Pub. Power Supply Sys.,

692 F2d 1286, 1290 (9th Cir. 1982) (“section 1981 only

redresses discrimination based on plaintiff’s race”).

Similarly, Plaintiff has failed to state a claim under 42

U.S.C. § 2000d because it has not alleged discrimination

based on race, color, or national origin as required by the

statute. Finally, all other claims having been dismissed,

Plaintiff’s § 1983 claim also fails.

IT IS THEREFORE ORDERED, granting Plain-

tiff’s Motion for Leave to File a First Amended Complaint

(doc. 19).

IT IS FURTHER ORDERED, granting State Defen-

dants’ Motion to Dismiss (doc. 12).

DATED this 17th day of January, 2003.

/s/ Frederick J. Martone

Frederick J. Martone

United States District Judge

App. 20

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Cholla Ready Mix, Inc., ) No. CV-02-1185-PCT PHX-FJM

Plaintiff, ORDER

VS. ) (Filed Feb. 25, 2003)

Federal Highway )

Administration, et al.,

Defendants. _+)

The court has before it Plaintiff’s Motion for Recon-

sideration (doc. 32), which includes an alternative request

for certification of final judgment against State Defen-

dants pursuant to Rule 54(b) of the Federal Rules of Civil

Procedure.

IT IS ORDERED, denying Plaintiff’s motion for

reconsideration.

IT IS FURTHER ORDERED, granting Plaintiff’s

alternative request for certification of final judgment

against State Defendants. We expressly determine that

there is no just reason for delay and direct the entry of a

final judgment as to the State Defendants.

DATED this 21 day of February, 2003.

/s/ Frederick J. Martone

Frederick J. Martone

United States District Judge

App. 21

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Cholla Ready Mix, Inc, )

Federal Highway

Administration, et al.,

) JUDGMENT IN A CIVIL

) CASE

CV 02-1185 PCT FJM

) (Filed Feb. 25, 2003)

)

Defendants. _)

Plaintiff,

VS.

___ Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

X Decision by Court. This action came for considera-

tion before the Court. The issues have been consid-

ered and a decision has been rendered.

IT IS ORDERED pursuant to Rule 54(b), as the Court

previously granted the Defendants Motion to Dismiss,

that judgment is entered as to the State Defendants

(Mendez, Swan, Belt, Crowther, Anderson, Duarte,

Rosenberg, Garrison and Gasser) only, therefore the

Plaintiff shall take nothing. This complaint and ac-

tion are hereby dismissed.

February 25,2003 RICHARD H. WEARE

Date District Court Executive/Clerk

/s/ {Ilegible]

(By) Deputy Clerk

cc: (all counsel)

App. 22

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHOLLA READY MIX, INC., No. 03-15423

ae D.C. No.

a CV-02-01185-PCT-FJM

FEDERAL HIGHWAY

ADMINISTRATION; et al., JUDGMENT

Defendants,

and (Filed Nov. 2, 2004)

WILLIAM CIVISH,

BLM Safford, Arizona Field

Office District Manager; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

District of Arizona (Phoenix).

This cause came on to be heard on the Transcript of

the Record from the United States District Court for the

District of Arizona (Phoenix) and was duly submitted.

On consideration whereof, it is now here ordered and

adjudged by this Court, that the judgment of the said

District Court in this cause be, and hereby is AFFIRMED.

App. 23

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHOLLA READY MIX, INC., | No. 03-15423

Plaintiff-Appellant, D.C. No. CV-02-01185-FJM

ny District of Arizona, Phoenix

WILLIAM CIVISH, BLM ORDER

Safford, Arizona Field Office

District Manager; VICTOR (Filed Oct. 14, 2004)

MENDEZ, Secretary of the

Department of Transportation

(ADOT); JEFF SWAN,

ADOT Holbrook District

Engineer; WILLIAM BELT,

ADOT Environmental

Planning Services

Department; THOR

ANDERSON, ADOT Official;

RICHARD DUARTE, ADOT

Environmental Planning

Section Manager; BETTINA

ROSENBERG, ADOT Historic

Preservation Coordinator;

JAMES GARRISON, Arizona

State Historic Preservation

Officer; ROBERT GASSER,

Arizona Parks Department

Compliance Officer,

Defendants-Appellees.

Before: B. FLETCHER, TROTT, and FISHER, Circuit

Judges.

App. 24

Judges Trott and Fisher vote to deny the petition for

rehearing en banc and Judge B. Fletcher so recommends.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc is denied.

App. 25

UNITED STATES CONSTITUTION AMENDMENT I

Establishment of Religion

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press, or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

App. 26

ARIZONA

DEPARTMENT OF TRANSPORTATION

STANDARD SPECIFICATIONS

for

ROAD AND BRIDGE CONSTRUCTION

2000

31-066

* a Bs

SECTION 104

(F) Termination of Contract:

If the Department elects to terminate the contract, the

termination and the determination of the total compensa-

tion payable to the contractor shall be governed by the

provisions of Subsection 108.11, “Termination of Contract

for Convenience of the Department.”

104.12 Environmental Analysis:

The contractor shall prepare an environmental analysis for

approval by the Engineer, under the following conditions:

(A) If the contractor elects to provide material from

a contractor-furnished source,

(B) If the contractor elects to utilize any site, to set

up a plant for the crushing and processing of

base and surfacing materials, or processing base,

surfacing, or concrete materials which is not lo-

cated on a site furnished by the Department or

the site of a commercial operation, or

prove access to a controlled access highway at

points other than legally established access

points.

App. 27

The contractor shall promptly advise the Engineer that it

is preparing the analysis and shall submit it upon comple-

tion. The contractor should anticipate needing a minimum

of 30 days to coordinate with the necessary jurisdictions or

agencies and to prepare the analysis. The analysis will be

reviewed by the Department and the contractor will be

advised whether or not the analysis is acceptable as soon

as the necessary determinations have been made. The

contractor shall allow 14 days for the Department’s review.

If the preparation, and approval of the environmental

analysis causes a delay to a controlling activity of the

project, the contractor may seek, and the Engineer may

grant, an extension of time for the preparation of the

analysis in accordance with the terms of Subsection

108.08. The time extension shall not exceed 30 working

days.

An environmental analysis shall address itself to all

environmental effects, including, but not limited to, the

following:

(A) The location of the proposed source and haul

road and the distance from the source to either

an existing highway or an established alignment

of a proposed Federal, State or County highway

along with vicinity maps, sketches or aerial pho-

tographs.

(B) The ownership of the land.

parks, wildlife refuges or other similar protected

areas.

(D) The former use, if known, of the source and haul

road and their existing condition.

(E)

(F)

(G)

(H)

(I)

(J)

(K)

App. 28

The identification of present and planned future

land use, zoning, etc., and an analysis of the

compatibility of the removal of materials with

such use.

The anticipated volume of material to be re-

moved; the width, length and depth of the exca-

vation; the length and width of the haul road

and other pertinent features and the final condi-

tion in which the excavated area and haul road

will be left, such as sloped sides, topsoil replaced,

the area seeded, etc.

The archaeological survey of the proposed source

prepared by a person with acknowledged creden-

tials, which credentials shall be attached to the

survey. The survey shall be prepared in a State

Historic Preservation Office standardized for-

mat. The survey shall identify cultural resources

within the potential impact area of the materials

source processing area, and haul road. Addition-

ally the survey report shall identify historic or

archaeological sites in the vicinity.

If the proposed source and haul road will utilize

Prime and Unique Farm land or farm land of

statewide importance, a description of such re-

maining land in the vicinity and an evaluation

whether such use will precipitate a land use

change.

A description of the visual surroundings and the

impact of the removal of materials on the visual

setting.

The effect and mitigation of such effects on ac-

cess, public facilities and adjacent properties.

The relocation of business or residences.

(L)

(M)

(N)

(O)

(P)

(Q)

(R)

App. 29

Procedures to minimize dust in pits and on haul

roads and to mitigate the effects of such dust.

A description of noise receptors and procedures

to minimize impacts on these receptors.

A description of the impact on the quality and

quantity of water resulting from the materials

operation shall be provided. The potential to in-

troduce pollutants or turbidity to live streams

and/or nearby water bodies shall be addressed.

Measures to mitigate potential water quality

impacts shall be coordinated through the Ari-

zona Department of Environmental Quality.

A description of the impact on endangered or

threatened wildlife and plants and their habitat.

The analysis of potential impact to plants and

wildlife shall be coordinated through the Arizona

Game and Fish Department and US Fish and

Wildlife Service. Compliance with the Arizona

Native Plant Law shall be coordinated through

the Arizona Commission of Agriculture and Hor-

ticulture.

A discussion of the effects of hauling activities

upon local traffic and mitigating measures

planned where problems are expected.

A description of the permits required, such as

zoning, health, mining, land use, flood plains

(see Section 404 of the Clean Water Act), etc.

The effect of removing material and/or stockpil-

ing material on stream flow conditions and the

potential for adverse impacts on existing or pro-

posed improvements within the flood plain which

could result from these activities.

App. 30

Guidance in preparing the environmental analysis is

available from ADOT’s Environmental Planning Section,

205 South 17th Avenue, Room 240E, Phoenix, AZ 85007,

phone (602) 712-7767.

104.13 Value Engineering Proposals by the Con-

tractor:

Proposals may be submitted to the Engineer for modifying

the plans, specifications, or other requirements of the

contract for the sole purpose of reducing the total costs of

construction without impairing in any manner the essen-

tial functions or characteristics of the project, including

service life, economy of operations, ease of maintenance,

benefits to the traveling public, desired appearance or

design and safety standards.

After execution of the contract, an initiative may be

recommended by the contractor. The initiative must be

identified as a Value Engineering Proposal (VEP), and

may include modifications to the plans or specifications,

construction phasing or procedures, or other contract

requirements.

Any cost savings generated to the contract as a result of

VEP offered by the contractor and approved by the De-

partment will be shared equally between the contractor

and the Department as specified in Subsection 104.13(D).

* * *

App. 31

SECTION 1001

SECTION 1001 MATERIAL SOURCES:

1001-1 Description:

The work under this section shall consist of the procuring

of borrow, subbase and base materials, mineral aggregates

for concrete structures, and mineral aggregates for surfac-

ing materials specified for use from sources either desig-

nated on the project plans or in the Special Provisions or

from other sources.

1001-2 General:

The contractor shall determine for itself the type of

equipment and work required to produce a material

meeting the specifications.

Unless otherwise specified, pits and quarries shall be so

excavated that water will not collect and stand therein.

Sites from which material has been removed shall, upon

completion of the work, be left in a neat and presentable

condition. Where practicable, borrow pits, gravel pits, and

quarry sites shall be located so that they will not be visible

from the highway.

The contractor shall provide an environmental analysis, as

specified in Subsection 104.12, for any contractor-

furnished source proposed for use. Environmental analy-

ses prepared for contractor-furnished sources, and ap-

proved by the Department later than January 1, 1999, will

be acceptable.

A list of sources known by the Department to have ap-

proved environmental analyses will be kept on file at the

ADOT Materials Group, mail drop 068R, 1221 N. 2ist

App. 32

Avenue, Phoenix, Arizona 85009-3740. The contractor may

propose the use of these sources as a contractor-furnished

source without the requirement of submitting a new

Environmental Analysis, provided that all other require-

ments of this section have been met.

It shall be the responsibility of prospective bidders to

conduct any necessary on-site investigations and/or

explorations, and to satisfy themselves that the quantity

and/or quality of material exists in the sources listed

above. No representation regarding quality or quantity of

materials is made by the Department.

1001-2.01 Definitions:

Ail material sources shall fall into one of the following two

categories:

Department-Furnished Source

Contractor-Furnished Source

A Department-furnished source shall be defined as a

material source for which the Department has prospected,

taken samples, tested, prepared an Environmental Analy-

sis, secured the rights for its use including ingress and

egress, and which may be available for the contractor’s use

on a specific project.

A contractor-furnished source shall be defined as any

source other than a Department-furnished source, and

shall include commercial operations as defined below.

A commercial operation shall be defined as a material

source at which the owner or producer has been located for

at least the preceding 12 months prior to award of con-

tract, and routinely engaged during regular business

App. 33

hours on a consistent basis in the processing and selling of

sand, rock, ready mixed Portland cement concrete, asphal-

tic concrete and other similar products to all parties. The

company shall have an Arizona retail sales tax license.

The contractor shail furnish documentation to the Engi-

neer that the source is an active commercial operation.

This documentation may include evidence of sales or other

data acceptable to the Engineer. A commercial source,

whenever referenced in the specifications, shall be consid-

ered to be a commercial operation, as defined herein.

Should the contractor elect to set up a concrete or asphalt

batch plant within or adjacent to a commercial operation

for the exclusive supply of contract items, the contractor’s

operation shall not be considered part of the commercial

operation.

1001-2.02 Material Sources in Flood Plains:

The use of material sources situated in the 100-year flood

plain of any stream or watercourse, and located within one

mile upstream and two miles downstream of any highway

structure or surfaced roadway crossing, shall be limited as

follows:

(A) Existing commercial operations, as defined in

Subsection 1001-2, shall not be utilized as a

source of borrow.

(B) No new source or existing non-commercial

source will be approved for any materials except

as specified in the following subparagraph (C).

flood control management projects may be used

as borrow material only if the contractor sub-

mits written evidence to the Engineer that the

(D)

App. 34

flood control agency project was fully designed

and funded prior to the date of advertisement

for bids on the Department project.

Material sources located on Native American

Indian Reservations will be considered for use

based on an individual analysis. The analysis

shall include a review of applicable land use

plans, flood plain management plans, environ-

mental plans, applicable laws and regulations

pertaining to Indian Reservations, and an engi-

neering analysis of the effects on any highway

facility or structure. The contractor shall obtain

from the Native American Tribal Council all

permits, licenses, and approvals and present to

the Department for review. The Department

will review each request on a case by case basis.

The location of any new material source or ex-

isting non-commercial material source proposed

for use on the project shall be reviewed by the

appropriate agency having flood plain man-

agement jurisdiction for the area in which the

proposed source is located. The contractor shall

obtain a letter from the agency addressed to the

Engineer certifying that the location of the pro-

posed source conforms to the requirements of

the specifications.

Contractors seeking a flood plain material

source are cautioned that Section 404 of the

Clean Water Act may prevent use of the source

unless an appropriate permit is first obtained

from the "J.S. Army Corps of Engineers.

If a flood plain source is being considered for

use, the contractor is advised to contact Envi-

ronmental Planning Services of ADOT to insure

App. 35

that the source will be obtainable within the

required time frame.

1001-3 Department-Furnished Sources:

1001-3.01 General:

The use of a Department-furnished source is not manda-

tory.

1001-3.02 Information Available:

The approximate location, the kind of material, the name

and address of the owner, the amount of royalty charges,

and other relevant information will be available for review

from the Materials Group, 1221 N. 21st Avenue, Phoenix,

Arizona 85009-3740.

The available information should be considered at most as

only a starting point for those prospective bidders choosing

to use the source.

It shall be the responsibility of prospective bidders to

conduct any necessary on-site investigations and/or

explorations, and to satisfy themselves that the quantity

and/or quality of material exists in the source in the event

their bids are -predicated upon the use of the source.

Whether a source will in fact yield material of sufficient

quantity or quality to meet the specific requirements may

not have been determined.

Prospective bidders are advised that an agency having

jurisdiction over the source, such as the Forest Service,

Bureau of Land Management, Bureau of Reclamation, the

State Land Department, etc., or the owner, as a condition

to the use of the source, may have imposed certain obliga-

tions. The contractor who uses such a source shall assume

App. 36

full contractual responsibility for any and all of these

obligations imposed either by the agency having jurisdic-

tion or by the owner. Specific requirements may or may

not be available, and prospective bidders considering such

a source are urged to make themselves fully aware of any

and all requirements.

It shall be the responsibility of the bidder to ensure that

Environmental Analysis complies with existing laws,

rules, regulations.

1001-3.03 Usage cf Materials:

Except as hereinafter provided, materials removed from

Department-furnished sources shall be used only for the

specific project and purpose for which the source was

obtained.

Should the contractor desire to remove and use material

other than that specified for use, prior approval by means

of a supplemental agreement shall be obtained. The

contractor shall furnish the Engineer with evidence that

the owner of the source has agreed to such use. The

Department reserves the right to disapprove any request

when it is considered to be in the best interest of the

Department to conserve such material for future use.

If the Department approves the removal and use of such

material, the quantity of the material removed and the

quantity of any waste material resulting from its removal

will be deducted from the estimated quantity of material

shown to be available.

App. 37

1001-5.04 Royalty Charges:

The amount of the royalty charges and the name and

address of the party to whom royalties are to be paid will

be available from the Materials Group, 1221 N. 21st

Avenue, Phoenix, Arizona 85009-3740.

Prior to the time of final payment, the contractor shall

furnish the Engineer with evidence such as an endorsed

canceled check that all royalty charges have been paid. In

the event that royalty charges have not been paid, the

Department reserves the right to make such payment and

to deduct the amount of such payment from monies due

the contractor.

The final billing and payment for material extracted from

sources under the jurisdiction of the State Land Depart-

ment will include a small administrative charge based on

the total amount of royalties due for materials removed.

Upon receipt of the final billing from the Department of

Transportation, the contractor shall mail a check, payable

to the State hand [sic] Department, addressed as follows:

Arizona Department of Transportation

Field Reports Services

206 South 17th Avenue

Phoenix, Arizona 85007

1001-3.05 Performance Bonds:

If Department-furnished sources are under the jurisdic-

tion of either the State Land Department or the Bureau of

Land Management, the contractor shall secure a perform-

ance bond. A fully executed copy of the bond shall be

furnished the Engineer along with evidence that a fully

App. 38

executed copy has been sent to the State Land Department

or the Bureau of Land Management.

The form of the Performance Bond will be included in the

proposal pamphlet. For pits under the jurisdiction of the

Bureau of Land Management, the surety shall be a com-

pany listed under “Surety Companies Acceptable on

Federal Bonds.” This list is published annually as of July 1

in the Federal Register.

Performance bonds shall be conditioned upon the compli-

ance with the requirements of the State Land Department

and the Bureau of Land Management and the require-

ments of the specifications for the clearing of pit sites, the

removal of material and the cleaning up of pit sites.

Copies of fully executed performance bonds shall be mailed

as follows:

State Land Commission Bureau of Land Management

State Land Department Manager, Land Office

1624 West Adams Street 2400 Valley Bank Center

Phoenix, Arizona 85007 Phoenix, Arizona 85073

1001-3.06 Sampling and Testing:

The results of any sampling and testing accomplished by

the Department will be available from the Materials

Group, 1221 N. 21st Avenue, Phoenix, Arizona 85009-3740.

1001-4 Contractor-Furnished Source:

1001-4.01 Approval Requirements:

(A) General:

The contractor shall promptly advise the Engineer as to

the source thai it proposes to use.

App. 39

The contractor acknowledges that all the conditions set

forth in this subsection must be met before the source may

be used.

Other than sampling and testing, the requirements of this

subsection shall be completed prior to initiation of any

activities which disturb the existing conditions at the

proposed source.

The contractor further acknowledges that no additional

compensation will be made on account of any delays in

preparing or modifying the environmental analysis,

obtaining approval for the use of a contractor-furnished

source, or the failure to obtain approval of a contractor-

furnished source. An extension of contract time may be

granted only in accordance with Subsections 104.12 or

1001-4.01(B)(4),

(B) General Requirements For Approval:

The use of a contractor-furnished source will require

written approval by the Engineer. No approval will be

given until the contractor has complied with the following

conditions:

(1) The contractor has submitted an Environmental

Analysis of the source proposed for use and the

Department has reviewed the analysis and satis-

fied itself that the use of such source will not

have an adverse social, economic or environ-

mental impact. The requirements of this condi-

tion shall be completed prior to initiation of any

activities which substantially disturb the exist-

ing conditions at the proposed source.

(2) Except for commercial operations, the contractor

has furnished the Engineer with evidence that

App. 40

he has secured the rights to the source, including

ingress and egress.

(3) The Department has determined that the mate-

rial from the proposed contractor-furnished

source not only meets the requirements, but is

also compatible with the established project de-

sign criteria developed by the ADOT Materials

Group and based on the soil support value of the

embankment; and, except for commercial opera-

tions, the sampling and testing herein specified

has been satisfactorily completed.

(4) For a contractor-furnished source which is not a

commercial operation as defined in Subsection

1001-2.01, the contractor shall notify the Arizona

Department of Agriculture, in accordance with

the Arizona Native Plant Law, at least 30 days

prior to any clearing operations of less than 40

acres on private land, 60 days prior to clearing

operations of 40 or more acres on private land,

and 60 days prior to any clearing of state land,

regardless of size. If the Engineer is convinced

that the contractor has made every effort to

comply with the provisions of the Arizona Native

Plant Law in contacting the Department of Agri-

culture, the Engineer will increase the number

of contract days by the amount of time required

for action by the Department of Agriculture. The

increase will not exceed 20 contract days and

will be concurrent with any increase allowed for

the preparation of the Environmental Analysis.

If the Department determines that the proposed use

will have major adverse impact on cultural or historic

App. 41

resources, the Department will not allow the use of the

source.

1001-4.02 Testing Requirements:

The contractor shall furnish equipment and personnel and

shall obtain representative samples of the material under

the supervision of the Engineer. At the option of the

contractor, the material shall be tested by either the

Department or by a testing laboratory approved by the

Department.

If testing is performed by a testing laboratory, the contrac-

tor shall arrange for the samples to be delivered to the

testing laboratory. Tests shall be performed using appro-

priate test procedures referred to in the sections of the

specifications in which the specific material requirements

are described.

The contractor shall make the arrangements necessary to

see that the testing laboratory submits the results of the

tests to ADOT Materials Group. The contractor shall

submit to ADOT Materials Group sufficient material from

the samples taken so that ADOT Materials Group may

test the materials and verify the results.

The cost of all sampling and testing, including the cost of

supervision by the Engineer, shall be borne by the contrac-

tor until the testing has been satisfactorily completed.

Exploratory sampling and testing activities conducted

prior to the Department’s approval shall be limited to the

minimum amount of vegetation removal and surface

disturbance required to obtain representative samples.

The contractor shall not produce material, mobilize

App. 42

crushing equipment or clear a worksite prior to approval

of the Environmental Analysis.

The use of material from commercial operations will

require written approval by the Engineer. No approval

shall be assumed, nor will it be made, until the Depart-

ment has determined that the material not only meets the

specified requirements, but is also compatible with the

established project design criteria developed by ADOT

Materials Group, and based on the soil support value of

the embankment materials and the structural coefficients

of the base and surfacing materials.

Every effort will be made by the Department to advise the

contractor as quickly as possible that the source it pro-

poses to use has been either approved or disapproved. The

contract time will not be adjusted because of any time

required by either the contractor or the Department to

sample and test the material and to determine the quality

of the material.

1001-5 Blank

1001-6 Special Access:

If there is a Department-furnished source, the point(s) at

which special access to a controlled access highway may be

allowed will generally have been considered and, if appro-

priate, will be shown on the project plans. Such access

shall be in accordance with the requirements specified in

the Special Provisions and on the project plans.

The contractor may make a request to the Engineer to

approve special access to a controlled access highway if:

App. 43

(1) Special access is not shown on the project plans,

(2) The contractor elects not to furnish material

from the Department-furnished source, or

(3) There is no Department-furnished source.

The request by the contractor shall be accompanied by an

Environmental Analysis and by documents which specify

the point(s) of access, the acquisition of right-of-way, the

manner in which access will be attained, the traffic control

plan, and crossovers, along with all other appropriate data

which will allow the Engineer to evaluate its request. If

the request is approved, a supplemental agreement shall

be entered into.

All costs associated with the special access requested by

the contractor shall be borne by the contractor, including,

but not limited to, cattle guards, fences, gates and restora-

tion work.

When access is not being utilized, gates shall be closed and

locked. Upon completion of all operations, the area within

the right-of-way which has been disturbed shall be restored

to the condition existing prior to the contractor’s opera-

tions.

The decision by the Engineer to deny a request by the

contractor will be considered to be final.

1001-7 Operations at Source:

1001-7.01 General Requirements:

The requirements of Subsection 1001-7 shall not apply to

commercial operations.

App. 44

In Department-furnished sources the contractor shall

conduct its operations in such a manner as to preserve

available materials in excess of project requirements.

The contractor shall notify the Engineer in advance of

operations at the source. Notice shall be given before and

after clearing and stripping and before and after cleaning up.

1001-7.02 Clearing and Stripping:

Before beginning stripping, the contractor shall clear and

grub the source as necessary to prevent the contamination

of materials to be used in the work. Clearing and grubbing

shall be in accordance with the requirements of Section

201, except that the resulting surface need not be leveled

and vegetable matter need not be separated from any

overburden which the Engineer determines to be unsuit-

able for any future use and which is to be wasted.

In the disposal of all tree trunks, stumps, brush, limbs,

roots, vegetation and other debris removed, the contractor

shall comply with the requirements of Title 36, Public

Health and Safety, Chapter 6, Article 8, Air Pollution, of

the Arizona Revised Statutes and with the Rules and

Regulations for Air Pollution Control, Article 7, adopted by

the Arizona Department of Environmental Quality pursu-

ant to the authority granted by the Statutes.

Burning will be permitted only after the contractor has

obtained a permit from the Arizona Department of Envi-

ronmental Quality and from any other Federal, State,

County or City Agency that may be involved.

When stripping is required, overburden shall be removed

to the extent necessary to remove all undesirable materi-

als and shall, at all times, be kept stripped at least five

feet beyond the working face of the area being excavated.

App. 45

1001-7.03 Extraction of Materials:

Materials shall be removed from the source in a work-

manlike manner. In order to produce acceptable material

in the amount and gradation required, it may be necessary

for the contractor to do any or all of the following, along

with any other similar operations usually associated with

the extraction, processing and production of the particular

material being produced:

Move materials from one area to another.

Perform additional screening.

Remove, wash and waste material.

Blend materials.

Revise crushing methods.

Remove deleterious materials such as clay balls, roots

and sticks.

If the Engineer determines that the material in a source is

stratified, all material except borrow shall be removed for

the full depth in such a manner as to produce a uniform

blend of the material. Placing the material from different

areas and depths into a surge pile and removing material

from the surge pile by cutting through the pile will be

acceptable provided that a uniformly blended material is

obtained.

Material sources located in drainage channels such as

washes, river beds, etc., may experience seasonal varia-

tions in the depth of ground water. In order to produce the

quantity of material estimated to be available in Depart-

ment-furnished sources, the contractor may be required to

work below the water table.

1001-8 Fences and Cattle Guards:

Where the haul roads to material sources cross existing

fence lines in areas where there is livestock of any kind,

App. 46

temporary cattle guards shall be installed by the contrac-

tor at each crossing.

The livestock operator or owner shall be contacted prior to

the beginning of any operations and effective measures

shall be taken and means provided by the contractor to

prevent livestock from straying.

In operations where conditions will exist that are danger-

ous to livestock of any kind, temporary cattle guards and

fence shall be installed around the pit area by the contrac-

tor to protect livestock.

Temporary cattle guards and fence installed by the con-

tractor shall be removed and existing fence disturbed shall

be replaced or reconstructed and all fence shall be left in

as good condition as it was prior to the beginning of work.

1001-9 Cleaning Up:

The requirements of this subsection shall apply to contrac-

tor-furnished sources to the extent that they are required

by the Environmental Analysis and by the owner. The

requirements of Subsection 1001-9 shall not apply to

commercial operations.

All overburden and other undesirable materials removed

and all piles of waste materials resulting from operations

in Department-furnished sources shall be deposited within

the excavated area of the source and the material shall be

leveled as directed. In the event that the Department-

furnished source contains material needed for future use,

the placement of such materials within the excavated area

shall be as directed. All debris shall be removed and

disposed of and, if directed, all open test holes shall be

filled. The sides of Department-furnished sources shall be

App. 47

sloped and smoothed so that livestock can enter and leave

the excavated area safely. Unless otherwise specified, all

haul roads constructed to Department-furnished sources

shall be obliterated and, as far as practicable, the ground

left in as good condition as it was prior to hauling.

1001-10 Method of Measurement and Basis of Pay-

ment:

Except as may be otherwise specifically provided for in

this section or elsewhere, no measurement or direct

payment will be made for any costs involved in the procur-

ing of materials. Such costs shall be considered as included

in the cost of contract items.

SECTION 1002 PAINT:

1002-1 Requirements:

(A) General:

All paints furnished shall be ready-mixed at the manufac-

turer’s plant, except for aluminum paint and zinc paint,

which shall be mixed at the project site or fabricator just

prior to application. All paints shall be standard paint

products of the manufacturer with published product data

sheets and shall comply in all details with the paint

specifications as listed herein.

Ready-mixed paint shall be homogeneous, free of contami-

nants, and shall be of a consistency suitable for the use for

which it is specified. The pigment shall be finely ground

and properly dispersed in the vehicle, according to the

requirements for the type of paint, and this dispersion

shall be such that the pigment does not settle appreciably,

does not cake or thicken in the paint container, and does

App. 48

not become granular, jelled or curdled. Any settlement of

pigment in the paint shall be easily dispersed with a

paddle so as to produce a smooth uniform paint of the

proper consistency. The manufacturer shall include in the

paint the necessary additives for control of sagging,

leveling, drying, drier absorption and skinning.

Paint shall be furnished in new, unopened air-tight con-

tainers, which are clearly labeled with the exact title of

the paint, Federal Specification number when applicable,

name and address of the manufacturer, product code, date

of paint manufacture, and the lot or batch number. The

containers shall meet U.S. Department of

* * *

App. 49

William Perry Pendley

Christopher T. Massey

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

Tel: 303-292-2021 x16

Fax: 303-292-1980.

Attorneys for Plaintiff

Norman J). James

Arizona Bar. No. 006901

FENNEMORE CRAIG, PC

3003 North Central Avenue, Suite 2600

Phoenix, Arizona 85012-2913

Tel: 602-916-5000

Fax: 602-916-599z

Local Counsel for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

CHOLLA READY MIX, Inc.,

Plaintiff,

Federal Highway Administration

(“FHWA”); MARY PETERS, No. CV 02-1185

Federal Highway Administrator; PCT FJM

ROBERT HOLLIS, FHWA Arizona PLAINTIFF’S

Division Administrator; NATHAN FIRST AMENDED

BAN KS, FHWA Phoenix District COMPLAINT

Engineer; VIRGINIA CHERWEK,

FHWA Associate Chief Counsel for| (Filed Feb. 03, 2003)

Environmental, Planning, and

Property Law; KATHLEEN

CLARKE, Director of the Bureau

of Land Management (“BLM”);

WILLIAM CIVISH, BLM Safford,

App. 50

Arizona Field Office District

Manager; JOHN L. NAU, III,

Chairman of the Advisory Council

on Historic Preservation (“ACHP”);

JOHN M. FOWLER, ACHP Execu-

tive Director; DON KLIMA, ACHP

Director of Office of Planning and

Review; MARY ANN NABER,

ACHP Office of Planning and

Review official;

Federal Defendants, and

VICTOR MENDEZ, Secretary of

the Arizona Department of Trans-

portation (ADOT); JEFF SWAN,

ADOT Holbrook District Engineer;

THOR ANDERSON, ADOT official;

RICHARD DUARTE, ADOT

Environmental Planning

Section Manager; BETTINA

ROSENBERG, ADOT Historic

Preservation Coordinator;

JAMES GARRISON, Arizona

State Historic Preservation

Officer; ROBERT GASSER,

Arizona Parks Department

Compliance Officer;

State Defendants.

Nature of the Claim

1. The Arizona Department of Transportation

(“ADOT”), the Arizona State Parks Department through

the State Historic Preservation Officer, the Federal High-

way Administration (“FHWA”), the Advisory Council on

Historic Preservation (“ACHP”), and the Bureau of Land

App. 51

Management (“BLM”) individually and collectively main-

tain and enforce a policy against the mining of Woodruffe

[sic] Butte. The policy results directly from a belief that

the Butte is considered sacred by Hopi, Zuni, and Navajo

Indians. Cholla Ready Mix, Inc. (“Cholla”) is — or would be

but for the enforcement of that policy — engaged in the

mining and leasing of Woodruff Butte as a materials

source. Cholla challenges the policy, those who implement

it, and any manner in which it is implemented, on the

grounds that it violates Cholla’s right against establish-

ment of religion, Cholla’s right against special laws, and

Cholla’s right to equal protection of the laws.

Jurisdiction and Venue

2. This Court has jurisdiction over this matter

pursuant to 28 USC §§ 1331 and 1343 because the matter

in controversy arises under the laws and Constitution of

the United States, including the Establishment Clause of

the First Amendment and the Civil Rights Act of 1871 (as

amended), 42 U.S.C. §§ 1981, 1983, and 2000d.

3. This Court has supplemental jurisdiction over

each of the state law claims, which arise under the Ari-

zona Constitution, pursuant to 28 USC § 1367. These

claims are related closely to the violations of the United

States Constitution and the Civil Rights Act of 1871 (as

amended) and form part of the same case or controversy

under Article III of the United States Constitution.

4. Venue rests properly in this Court pursuant to 28

USC § 1391(b) and (e) because a substantial part of the

events giving rise to the claims occurred in Arizona and

because Cholla and at least one of the Defendants resides

in Arizona.

App. 52

Parties

5. Cholla Ready Mix, Inc. is a corporation having its

principle place of business in the State of Arizona. It is

engaged primarily in the mining and sale of aggregate

materials from, and leasing of, Woodruff Butte. Dale

McKinnon, sole shareholder of Cholla, along with other

members of his family, own the Butte in fee simple. Ac-

cordingly, Cholla has exclusive access to the Butte as a

materials source.

6. All Defendants are sued in their official capacities.

Federal Defendants

7. The Federal Highway Administration is part of

the United States Department of Transportation. The

FHWA administers building and maintenance of roads on

federal land and provides technical and financial assis-

tance to state and local governments for building and

maintaining roads on state and local land.

8. Mary Peters is the Federal Highway Administra-

tor and forr r Secretary of ADOT. Defendant Peters is the

chief officia. of FHWA and is responsible ultimately for the

conduct of FHWA officials acting within the scope of their

employment. Defendant Peters was responsible for the

conduct of ADOT officials acting within the scope of their

employment while she was Secretary of ADOT.

9. Rebert Hollis is the Division Administrator for

FHWA'’s Arizona Division. Defendant Hollis bear responsi-

bility for the conduct of Division employees acting within

the scope of their employment and also for his own con-

duct. Such conduct includes being the signatory to much of

App. 53

the correspondence involved in the conduct that forms the

basis of this lawsuit.

10. Nathan Banks is the District Engineer for

FHW4A’s Phoenix District. Defendant Banks participated in

the formulation of ADOT’s challenged regulations as a

remedy for the purported demands of Indians regarding

Woodruff Butte.

11. Virginia Cherwek is FHWA’s Associate Chief

Counsel for Environmental, Planning, and Property Law.

Defendant Cherwek participated in the formulation of

ADOT’s challenged regulations as a remedy for the con-

tinued demands of Indian tribes regarding Woodruff

Butte.

12. The Bureau of Land Management (“BLM”) is an

agency within the United States Department of the

Interior. BLM administers and manages certain federal

lands, some of which are adjacent to Woodruff Butte.

13. Kathleen Clarke is the Director of the BLM.

Defendant Clark is responsible ultimately for the conduct

of BLM officials acting within the scope of their employ-

ment.

14. William Civish is the District Manager of BLM’s

Safford, Arizona Field Office. Defendant Civish is respon-

sible directly for conduct by BLM officials that forms part

of the basis of this lawsuit.

15. Gail Acheson or her successor is a BLM Area

Manager. Defendant Acheson signed the BLM Land

Closure Order that forms part of the conduct that is the

basis of this lawsuit.

App. 54

16. The Advisory Council on History Preservation

(“ACHP” or “the Council”) is a federal entity constituted

under the National Historic Preservation Act. The Council

is charged with administering federal historic preservation

programs.

17. John L. Nau, III is Chairman of ACHP. John M.

Fowler is Executive Director of ACHP. Defendants Nau

and Fowler share responsibility for the conduct of ACHP

officials acting within the scope of their employment.

18. Don Klima is the Director of ACHP’s Office of

Planning and Review. Defendant Klima is responsible for

the conduct of Planning and Review officials acting within

the scope of their employment and is a signatory to much

of the correspondence involved in the conduct that forms

the basis of this lawsuit.

19. MaryAnn Naber is an official in ACHP’s Office of

Planning and Review and was involved directly in much of

the conduct that forms the basis of this lawsuit.

State Defendants

20. ADOT is the primary agency of the State of

Arizona for the construction of roads and bridges. Various

of the State Defendants are ADOT officials.

21. Victor Mendez is Secretary of ADOT. The Secre-

tary of ADOT bears ultimate responsibility for the conduct

of ADOT and ADOT officials acting within the course and

scope of their employment. Defendant Mendez bears

responsibility for the maintenance and implementation of

ADOT?’s policy against use of Woodruff Butte as a materi-

als source.

App. 55

22. Jeff Swan is the District Engineer for ADOT’s

Holbrook District. Defendant Swan is the person or official

most directly responsible for day to day maintenance and

implementation of ADOT’s policy against use of Woodruff

Butte as a materials source.

23. Thor Anderson is an ADOT official involved with

applications for commercial source numbers. Defendant

Anderson managed Cholla’s most recent application for a

commercial source number. That application was denied.

24. Richard Duarte is Manager of ADOT’s Environ-

mental Planning Section. In that capacity, Defendant

Duarte bore responsibility for granting or denying Cholla’s

most recant application for a commercial source number.

Defendant Duarte denied that application.

25. Bettina Rosenberg is an ADOT Historic Preser-

vation Coordinator in the Environmental Planning sec-

tion. Defendant Rosenberd [sic] was involved with the

conduct that forms the basis of this lawsuit.

26. James Garrison is the Arizona State Historic

Preservation Officer (“SHPO”). The State Historic Preser-

vation Office is a division of the Arizona Parks Department.

Defendant Gasser [sic] is responsibie for identification,

evaluation, and preservation of historic resources. SHPO

decided, in the early 1990s, that Indian religious sites on

the private land of Woodruff Butte should be preserved.

27. Robert Gasser was a Compliance Officer with the

Arizona Parks Department at the time of the conduct that

is the subject of this lawsuit. Defendant Gasser is cur-

rently an employee of ADOT. In his official capacity with

Arizona Parks, Defendant Gasser recommended that a

App. 56

private citizen should preserve Indian religious sites on

the private land that is Woodruff Butte.

Statement of Facts

28. The Federal Highway Administration of the

United States Department of Transportation uses a

system of geographic districts for administrative purposes.

Woodruff Butte (“the Butte”) is located in what the FHWA

refers to as the Holbrook District.

29. More specifically, Woodruff Butte is located in

Navajo County, Arizona, at Section 8, Township 16 North,

Range 22 East. It is described still more particularly by

the Joint Tenancy Deed recorded in the office of the Navajo

County Recorder on September 25, 1995, at 11:35 a.m. For

purposes of this Complaint, the term “Woodruff Butte”

refers solely to the land owned by the McKinnons as

described in that Joint Tenancy Deed.

30. Woodruff Butte is a source of materials for road

construction.

31. Woodruff Butte is the most cost effective source

of material in the Holbrook District. The value of the

material derives from its high density, hardness, and low

absorbency, resulting in unusually high concrete strengths

and reduced oil usage in the paving process.

32. Woodruff Butte is private land. No governmental

or public entity, be it federal, state, municipal, or tribal,

owns any interest whatsoever in the Butte.

33. In 1990, Dale McKinnon and his family leased

Woodruff Butte from Norman Turley and began mining

App. 57

operations. The McKinnons’ mining enterprise was incor-

porated as Black Rock Construction, Inc. (“Black Rock”).

34. The Hopi, Zuni, and Navajo Indian Tribes passed

resolutions against the mining of Woodruff Butte in or

about 1990, shortly after mining operations on Woodruff

Butte began.

35. As a result of these resolutions, Defendants or

some of them, assert that they believe Woodruff Butte is

considered sacred ground by the Hopi, Zuni, and Navajo

Indian Tribes.

36. In or around 1990, the Arizona State History

Preservation Officer (“AzSHPO”) declared Woodruff Butte

eligible for listing on the National Registry of Historic

Places (“NRHP”). This eligibility has ramifications under

the National Historic Preservation Act even though

Woodruff Butte has never actually been listed on the

National Registry of Historic Places. —

37. AzSHPO declared Woodruff Butte eligible for the

NHRP because AzSHPO found that the tribes consider

Woodruff Butte sacred.

38. The McKinnons bought fee simple title to the

mined portion of Woodruffe Butte for $100,000 from

Norman Turley on September 17, 1991.

39. A professional appraisal conducted in the mid-

1990s determined that in full use, Woodruff Butte could

generate some $300,000 in annual profits for forty to fifty

years.

40. On June 6, 1991, ADOT granted a commercial

source permit, number CMO280, to Black Rock for mining

and to supply aggregate from Woodruff Butte. Then-existing

App. 58

ADOT regulations defined a “commercial source” as any

source that had been selling material in ordinary com-

merce for more that [sic] a year. Black Rock’s use of

Woodruff Butte qualified.

41. On January 23, 1995, Black Rock was consoli-

dated with Cholla Ready Mix, Inc. by Articles of Consoli-

dation pursuant to Arizona Revised Statutes, §§ 10-072

through 75. Black Rock was the surviving corporation, but

was renamed Cholla Ready Mix, Inc. Under the name

Cholla, the surviving entity continued the mining and

leasing operations on Woodruff Butte and kept commercial

source number CM0280. (Accordingly, for purposes of

clarity, all allegations regarding Black Rock or Cholla are

attributed to Cholla).

Injury

42. In summer 1990, Cholla was mining Woodruff

Butte under lease from Mr. Turley. Specifically, Cholla was

working toward filling a large purchase order from Tanner

Construction.

43. On July 11, 1990, Defendant Gasser “recom-

mend([ed]” by letter to Mr. Turley that Mr. Turley should

“avoid impacts to the Hopi shrines in the area.” Defendant

Gasser admitted in his letter the Parks Department “has

no authority over religious shrines,” however.

44. On July 18, 1990, William Belt, at the time an

official in ADOT’s Environmental Planning Services

Department, sent a letter to Navajo Nation Historic

Preservation Officer Alan Downer stating that ADOT had

decided not to use materials from Woodruff Butte. This

allegation is likely to have evidentiary support after

App. 59

reasonable opportunity for further investigation and

discovery.

45. On June 27, 1991, Barbara Crowther, at the time

an ADOT official, wrote to Tanner Construction discourag-

ing Tanner from further use of materials from Woodruff

Butte. In that letter, Crowther acknowledged that ADOT

had no legal authority in this regard. Crowther instead

suggested that Tanner should be concerned about its own

public image and therefore ought to show proper “sensitiv-

ity to this issue.”

46. Before the Tanner order could be completed,

ADOT official(s) informed Tanner that ADOT would not

pay for material mined from Woodruff Butte, forcing

Tanner to seek an alternate materials source. Tanner

cancelled the remainder of its order with Cholla as a

result.

47. On May 11, 1992, in an ADOT pre-construction

“Partnering Workshop,” ADOT listed “potential problem

with the Woodruff Pit” as an issue for discussion and

ADOT expressly discouraged use of Woodruff Butte as a

materials source.

48. Partnering workshops are meetings between

ADOT officials and project contractors. Such workshops

precede most every new ADOT project.

49. ADOT suggested, at the Partnering Workshop

described in paragraph 47 above, that contractors could

use Hennessy Butte as a materials source instead of

Woodruff Butte.

50. Hennessy Butte was owned by the State of

Arizona and had been closed for environmental reasons.

App. 60

Following or in conjunction with the events at the Partner-

ing Workshop described in paragraph 47, ADOT reopened

Hennessy Butte for mining. This allegation is likely to

have evidentiary support after reasonable opportunity for

further investigation and discovery.

51. Hennessy Butte was listed as the primary source

of material for an ADOT paving project east of Holbrook.

FNF Construction Company (“FNF”) was prime contrac-

tor on that project. At the May 11, 1992 Partnering Work-

shop described in paragraph 47, or another such workshop

at around the same time, FNF employee Matt Gully

expressed concern that Hennessy Butte might run out of

aggregate before the project was completed. He suggested

Woodruff Butte as an alternate. ADOT engineers stated

that any bid involving Woodruff Butte would be rejected,

regardless of Cholla’s commercial source number status.

52. In early 1996, FNF Construction chose Woodruff

Butte, through Cholla, for its material source on another

project at Perkins Valley on Interstate 40. The project was

close to Woodruff Butte. Cholla accordingly allowed FNF

to set up its own operations at the Butte in return for

paying Cholla royalties on the tonnage of aggregate

extracted.

53. FNF’s mining and processing operation, like all

mining and processing of materials from Woodruff Butte,

required use of the haul road to and from the Butte. At

that time, a short section of the haul road from the Butte —

approximately two hundred yards or less — crossed the

corner of adjacent BLM land.

54. In May, 1996, the BLM “closed” the parcel of

BLM land adjacent to Woodruff Butte that the haul road

crossed. The BLM closure thus threatened to block use of

App. 61

the Butte for the Perkins Valley project and for any other

project.

55. The BLM closure notice expressly acknowledged

that the closed BLM lands were “adjacent to private lands

commonly referred to as Woodruff Butte”; that the BLM

considered Woodruff Butte “an area of traditional religious

significance” to Hopi, Zuni and Navajo; that Woodruff

Butte was being mined; that “existing access to” the

mining area “involves crossing of” the closed BLM lands;

and that “the purpose of th[e] closure order is to allow the

BLM to consider granting access to these private lands.”

56. The BLM’s closure of the land was for the ex-

press purpose of stopping mining of Woodruff Butte and

for the express reason that the Butte is purportedly

considered sacred by several Indian tribes.

57. Before learning the location of the land or the

purpose of the closure, however, an unnamed BLM official

told Cholla that obtaining a permit to cross the land would

be a simple matter of submitting a short application and

paying a nominal fee.

58. When the BLM official learned that the closure

involved Woodruff Butte, he told Cholla that there was no

way a permit to cross the BLM land could be granted.

59. Lacking other viable alternatives, Cholla, along

with FNF Construction and Citizens Utility, which has

transmitting equipment atop Woodruff Butte, paid

$18,000 for an easement across adjacent private land. The

easement allowed them to go around the closed BLM land,

obviating the need for a permit to cross BLM land. Mining

of the Butte, therefore, continued.

App. 62

60. After the BLM’s closure of the haul road failed to

stop mining of Woodruff Butte, ADOT simply paid FNF

Construction to stop using the Butte.

61. Specifically, on December 16, 1996, ADOT issued

a change order for the Perkins Valley paving project. The

change order stated:

[FNF Construction] arranged to use material

from Pit number CM0280 (Woodruff Butte), a

commercial source. After operations to mine this

source were started, there began complaints from

concerned citizens as to destruction of this land-

mark. ... The contractor was ordered to stop the

mining ... by a Federal court order and they (sic)

then moved to commercial Pit number MS5588

(Hennessey Butte) owned by the State Land De-

partment.

Accordingly, the change order reimbursed FNF for monies

allegedly lost by FNF in the transaction: at least

$284,750.00.

62. ADOT did not remunerate Cholla for revenues

lost when FNF closed down its operations on Woodruff

Butte.

63. Throughout, much of the 1990s, ADOT inserted

special contract provisions into specifications for projects

near Woodruff Butte. The following has been in use since

1998:

The contractor shall insure that use of any

material source is in compliance with all applica-

ble historic preservation and environmental laws

and regulations, including Section 106 of the

National Historic Preservation Act, which may

{ App. 63

serve to limit or prevent the use of materials for

the site.

The Woodruff Butte materials site has been

the subject of claims by the Hopi, Navajo, and

Zuni tribes that the site is of national historic

and cultural significance per Section 106 of the

National Historic Preservation Act. During a

previous project, the contractor intended to use

Woodruff Butte as a materials source. The Hopi

Tribe filed a lawsuit in Federal District Court re-

questing an injunction prchibiting the use of

Woodruff Butte on the project. (Hopi Tribe v. Fed-

eral Highway Administration, et al.) The lawsuit

was voluntarily dismissed, but the project was

completed using another materials site.

Information concerning historical or cultural

preservation issues in the area can be obtained

from the following: [Hopi, Navaio, and Zuni rep-

resentatives].

MATLSTE, 03/13/1998. A similar, provision was in use by

May, 1997.

64. On May 20, 1998, a project involving the Hol-

brook Traffic Interchange (interstate entrance and exit

ramps, including bridges over the local road) was approved

and awarded to Vastco, Inc. as prime contractor (“Vastco”).

Vastco selected Cholla and Woodruff Butte for the materi-

als subcontract.

65. The Hopi filed a lawsuit in the United States

District Court for the District of Arizona, Hopi Tribe v.

Federal Highway Administration, et al., no. CIV 98-1061-

PCT-EHC, in an effort to ensure the Hopi would be_

consulted under Section 106 of the National Historic

App. 64

Preservation Act before Woodruff Butte could be used a

materials source for the Holbrook Traffic Interchange.

66. The Court in Hopi Tribe v. Federal Highway

Administration awarded the Hopi a temporary restraining

order, later converted tu a preliminary injunction, mandat-

ing Section 106 consultation with the Hopi before federal

funds could be used for the Holbrook Traffic Interchange

project. |

67. The project continued without the use of federal

funds, however, so Vastco continued to use the Butte as a

materials source until the Holbrook Traffic Interchange

project was completed.

68. In June 2002, the Hopi Tribe voluntarily dis-

missed its Complaint in Hopi Tribe v. Federal Highway

Administration.

69. In December 1998, while the Complaint in Hopi

Tribe v. Federal Highway Administration was pending,

USDOT officials met with officials of the national Advisory

Council on Historic Preservation (“ACHP”) regarding

ACHP’s concerns about use of Woodruff Butte as a materi-

als source. ACHP suggested in that meeting that Arizona

adopt a contract specification to require that if alleged

religious impacts cannot be mitigated completely, then

Woodruff Butte cannot be approved for use as a materials

source site.

70. The recommendation by ACHP described in

paragraph 69 above was communicated to ADOT. This

allegation is likely to have evidentiary support after

reasonable opportunity for further investigation and

discovery.

App. 65

71. Accordingly, in mid-1999 ADOT announced new

commercial source regulations. Under the new regula-

tions, all existing commercial source numbers would

expire at the end of 1999. Thereafter, commercial source

numbers were still necessary but could be obtained only if

the applicant submitted an environmental assessment

(“EA”) that considered impacts to places that are eligible

for the National Registry of History Places, such as Wood-

ruff Butte.

72. These new commercial source regulations are set

forth in Sections 104.12, 1001-2, and 1001-4.01 of the

ADOT Standard Specifications for Road and Bridge

Construction (2000) (“the challenged regulations”).

73. Under the challenged regulations, if ADOT

determines from the EA that adverse impacts to sites

eligible for — but not necessarily listed on — the National

avoided, the commercial source number application must

be denied.

74. Consultations between ADOT and FHWA regard-

ing drafting of the challenged regulations indicates

ADOT’s specific intent in promulgating the challenged

regulations was to prevent future use of Woodruff Butte as

a materials source.

75. Cholla applied for a new commercial source

number under the challenged regulations, hiring SWCA

Environmental Consultants of Flagstaff, Arizona, to

perform the necessary “cultural” analysis.

76. EAs drafted by SWCA are accepted routinely by

ADOT without call for serious revision. Cholla’s, however,

was not.

App. 66

77. On November 17, 1999, Defendant Anderson of

ADOT wrote to Cholla identifying three deficiencies in the

Environmental Compliance Checklist for Woodruff Butte.

Defendant Anderson explained that Cholla’s EA lacked

certain information on effects to endangered species,

lacked a stormwater pollution prevention plan, and

“[blased on the Historic Preservation Team’s cursory

review, the summary provided by SWCA regarding historic”

preservation is lacking sufficient information and back-

ground research.”

78. In support of his assertion that Cholla’s EA took

insufficient account of historic preservation, Defendant

Anderson provided a copy of a January 6, 1997, letter from

the Arizona State Historic Preservation Officer to Cholla.

That letter provides:

Woodruff Butte . .. was determined, by our office

in 1990, to be eligible for the National Register of

Historic Places as a Traditional Cultural Prop-

erty important in the history, cultural and reli-

gious practices and beliefs of at least three

Native American tribes.... The property was

eligible. ... primarily because of its association

with the migration and creation histories of the

tribes ... the cultural practices of the tribes ...

and the association with important deities in

Hopi, Zuni and Navajo religion. The Butte is an

important cultural landmark for the tribes and

has been a place of extreme importance in me-

dicinal plant collection and religious practices for

centuries.

(Emphasis added.)

79. Cholla continued to pay SWCA for several rounds

of revisions of the EA. Ultimately, SWCA performed and

App. 67

submitted a cultural resources assessment on Cholla’s

behalf dated March 13, 2000.

80. SWCA concluded that mining the Butte would

adversely affect an historic property because Woodruff

Butte, allegedly, is of religious significance to several

Indian tribes and mining would unavoidably alter the

Butte.

81. On June 16, 2000, ADOT explained, by letter to

Cholla, that the deficiencies in the cultural assessment

having been resolved, ADOT had submitted the assess-

ment to the Arizona SHPO and to the Tribes for review.

82. The Tribes concurred that Woodruff Butte is of

religious significance to them. The Navajo, more particu-

larly, “agree[d] with the assessments of eligibility ... for

the generalized sacred site encompassing [Woodruff] Butte

itself.” The Hopi pointed out that their “priests were

terribly concerned” as the Butte “housed ... nine major

shrines. ...”

83. On June 26, 2000, Defendant Duarte, Manager

of ADOT’s Environmental Planning Section, informed

Cholla by letter that Cholla’s application for a commercial

source number had been rejected. Defendant Duarte

expressly stated that the rejection was based on the SWCA

report and the SHPO’s and Indians’ concurrence with that

report.

84. Rejection of Cholla’s commercial source number

application, therefore, was based solely or at least. primar-

ily on the purported religious significance of Woodruff

Butte.

85. All Defendants currently participate and/or have

participated in the formulation, implementation, and/or

App. 68

enforcement of a policy against the use of Woodruff Butte

as a materials source for road and bridge construction in

Arizona because of Woodruff Butte’s religious significance

as a sacred site to American Indians.

First Claim For Relief

(Establishment of Religion - United States Constitution)

86. Cholla repeats and incorporates by reference all

the allegations of paragraphs 1 through 85 as if fully set_

forth herein.

87. The First Amendment to the United States

Constitution provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting the

free exercise thereof [.]” The First Amendment is applica-

ble to the States pursuant to the Fourteenth Amendment

to the United States Constitution.

88. Defendants maintain a policy against the use of

Woodruff Butte as a materials source.

89. The reason for this policy is that Defendants

believe Woodruff Butte is considered sacred by the Hopi,

Zuni, and/or Navajo Indian Tribes based on religious

grounds. —

90. ADOT actively maintains a policy and has

implemented this policy against use of Woodruff Butte by

first promulgating, then subsequently enforcing the

challenged regulations against Cholla.

91. The purpose of the challenged regulations,

Defendants’ policy, and the denial of Cholla’s application

for a commercial source number is not secular. Ii is in fact

based on specific religious grounds.

App. 69

92. The principle and/or primary effect of the chal-

lenged regulations, Defendants’ policy, and the denial of

Cholla’s application for a commercial source number is the

advancement and/or protection of religion. ;

93. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number foster an excessive governmental entan-

glement with religion.

94. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, constitute gov-

ernmental endorsement of religion pursuant to the beliefs

and practices of Hopi, Zuni, and/or Navajo Indian Tribes.

95. As a direct result of the challenged regulations

and Defendants’ formulation, implementation, and en-

forcement of their policy, Cholla is unable to bid for and/or

win materials subcontracts for ADOT highway construc-

tion contracts. The effect of this direct result violates

Cholla’s rights against establishment of religion under the

First Amendment to the United States Constitution.

96. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, violate Cholla’s

rights against establishment of religion under the First

Amendment to the United States Constitution.

97. Cholla has incurred and will continue to incur

attorneys fees and litigation expenses in prosecuting this

action to redress its rights under this provision of the

United States Constitution.

98. Cholla has no fully adequate remedy at law.

App. 70

Second Claim for Relief

(Establishment of Religion - Arizona Constitution)

99. Cholla repeats and incorporates by reference all

the allegations of paragraphs 1 through 98 as if fully set

forth herein.

100. Article 2, Section 12 of the Arizona Constitution

provides that “[nlo public money or property shall be

appropriated for or applied to any religious worship,

exercise, or instruction, or to the support of any religious

establishment.”

101. Article 20, Section 1 of the Arizona Constitution

provides that “[plerfect toleration of religious sentiment

shall be secured to every inhabitant of this state, and no

inhabitant of this state shall ever be molested in person or

property on_account of his or her mode of religious wor-

ship, or lack of the same.”

102. Defendants maintain a policy against the use of

Woodruff Butte as a materials source.

103. The reason for this policy is that Defendants

believe Woodruff Butte is considered sacred by the Hopi,

Zuni, and/or Navajo Indian Tribes based on religious

grounds.

104. ADOT actively maintains a policy and has

implemented this policy against use of Woodruff Butte by

first promulgating, then subsequently enforcing the

challenged regulations against Cholla.

105. The purpose of the challenged regulations,

Defendants’ policy, and the denial of Cholla’s application

for a commercial source number is in fact based on specific

religious grounds.

App. 71

106. The principle and/or primary effect of the

challenged regulations, Defendants’ policy, and the denial

of Cholla’s application for a commercial source number is

the advancement and/or protection of religion. ‘

107. Public money and/or property is appropriated

for and applied to the religious worship, exercise, or

instruction, and/or to the support of the establishment of

religion pursuant to beliefs and practices of Hopi, Zuni,

and/or Navajo Indian Tribes.

108. As a direct result of the challenged regulations

and Defendants’ formulation, implementation, and en-

forcement of their policy, Cholla is unable to bid for and/or

win materials subcontracts for ADOT highway construc-

tion contracts. The effect of this direct result violates

Cholla’s rights against establishment of religion and right

to toleration of religious sentiment under Article 2, Section

12 and Article 20, Section 1 of the Arizona Constitution.

109. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, violate Cholla’s

rights against establishment of religion and right to

toleration of religious sentiment under Article 2, Section

12 and Article 20, Section 1 of the Arizona Constitution.

110. Cholla has no fully adequate remedy at law.

Third Claim for Relief

(Special Laws - Arizona Constitution)

111. Cholla repeats and incorporates by reference all

the allegations of paragraphs 1 through 110 as if fully set

forth herein.

App. 72

112. Article 4, Section 19 of the Arizona Constitution

provides that no local or special laws are to be enacted

“(glranting to any corporation, association, or individual,

any special or exclusive privileges, immunities, or fran-

chises.”

113. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, discriminate

against Cholla in favor of the Navajo, Hopi, and Zuni

Indian Tribes.

114. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, impose restric-

tions on particular places, persons and things, namely, to

Woodruff Butte and Cholla Ready Mix, Inc.

115. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, illegitimately

classify by religion and race, not population, geography, or

time limitations. _

116. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and' separately, do not permit

other individuals or entities to come within the benefited

class.

117. The classification inherent in the challenged

regulations, Defendants’ policy, and the denial of Cholla’s

application for a commercial source number, together and

separately, do not encompass all members of the relevant

class; nor do they permit members to move into and out of

the class.

App. 73

118. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, represent “special

laws” granting special or exclusive privileges and/or

immunities in favor of the Navajo, Hopi, and Zuni Indian

Tribes. These same special or exclusive privileges and/or

immunities are not available to Cholla or those similarly

situated.

119. The challenged regulations, Defendants’ policy

in formulating, implementing, and enforcing such regula-

tions, and the denial of Cholla’s application for a commer-

cial source number, together and separately, violate

Cholla’s right against the application of “special laws”

under Article 4, Section 19 of the Arizona Constitution.

120. Cholla has no fully adequate remedy at law.

Fourth Claim for Relief

(42 U.S.C. § 1981)

121. Cholla repeats and incorporates by reference all |

the allegations of paragraphs 1 through 120 as if fully set

forth herein.

122. 42 U.S.C. § 1981 provides that “[aJll persons

within the jurisdiction of the United States shall have the

same right in every State and Territory to make and

enforce contracts,” which includes “the making, perform-

ance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions

of the contractual relationship.”

123. The challenged regulations, Defendants’ policy, —

and the denial of Cholla’s application for a commercial source

number, together and separately, have acted in the past, in

App. 74

the present, and in the future to deny Cholla the right to

contract freely for the commercial use of Woodruff Butte.

124. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, discriminate

against Cholla, and its ability to contract, in favor of the

Navajo, Hopi, and Zuni Indian Tribes.

125. Federal and State Defendants named herein

directed, participated in, and/or had knowledge of the

actions, challenged regulations, subsequent policy, and/or

the denial of Cholla’s application for a commercial source

number, which deprived Cholla of its rights under 42

U.S.C. § 1981.

126. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, acted to discrimi-

nate against Cholla’s right to make and enforce contracts

and to the full and equal benefit and privilege of all laws

and proceedings for the security of persons and property.

127. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, deny Cholla equal

rights under the law pursuant to 42 U.S.C. § 1981.

128. Cholla has no fully adequate remedy at law.

Fifth Claim for Relief

(42 U.S.C. § 1983)

129. Cholla repeats and incorporates by reference all

the allegations of paragraphs 1 through 128 as if fully set

forth herein.

App. 75

130. 42 U.S.C. § 1983 provides that “le]very person

who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District

of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at

law[.]” 3

131. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, discriminate

against Cholla in favor of the Navajo, Hopi, and Zuni

Indian Tribes.

132. Defendants actions, the challenged regulations,

Defendants’ policy, and the denial of Cholla’s application

for a commercial source number, together and separately,

violate: Cholla’s rights against the establishment of

religion under the First Amendment; the toleration of

religious sentiment under Article 2, Section 12 and Article

20, Section 1 of the Arizona Constitution; the application

of “special laws” under Article 4, Section 19 of the Arizona _

Constitution; the deprivation of equal rights under 42

U.S.C. § 1981; and the prohibition against exclusion from

participation in, denial of benefits of, and discrimination

under federally assisted programs under 42 U.S.C.

§ 2000d.

133. Federal and State Defendants named herein

directed, participated in, and/or had knowledge of the

actions, challenged regulations, subsequent policy, and/or

the denial of Cholla’s application for a commercial source

App. 76

number, which deprived Cholla of its rights under 42

U.S.C. § 1983.

134. The chailenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, have deprived

Cholla of the rights, privileges, and immunities secured by

the Constitution and the laws of the United States and the

Constitution and laws of the State of Arizona.

135. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, act as a depriva-

tion of Cholla’s rights under 42 U.S.C. § 1983.

136. Cholla has no fully adequate remedy at law.

Sixth Claim for Relief

(42 U.S.C. § 2000d)

137. Cholla repeats and incorporates by reference all

the allegations of paragraphs 1 through 136 as if fully set

forth herein.

138. 42 U.S.C. § 2000d provides that “[n]o person in

the United States shall, on the ground or race, color, or

national origin, be excluded from participation in, be

denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial

assistance.” |

139. The State of Arizona, ADOT, the Arizona State

Historic Preservation Office, and the Arizona Parks

Department, are recipients of federal financial assistance.

140. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

App. 77

source number, together and separately, discriminate

against Cholla in favor of the Navajo, Hopi, and Zuni

Indian Tribes.

141. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, deny Cholla the

use of its property, Woodruff Butte, because Cholla is not

affiliated with and refuses to recognize or to adhere to

certain religious practices of the Navajo, Hopi, and Zuni

Indian Tribes.

142. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, have denied and

continue to deny Cholla of the benefits of the commercial

use of Woodruff Butte through the ADOT commercial

source process and through ADOT’s Standard Specifica-

tions for Road and Bridge Construction (2000).

143. Federal and State Defendants named herein

directed, participated in, and/or had knowledge of the

actions, challenged regulations, subsequent policy, and/or

the denial of Cholla’s application for a commercial source

number, which deprived Cholla of its rights under 42

U.S.C. § 2000d.

144. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, discriminate

against Cholla based on race, color, and national origin,

and have resulted in the denial of Cholla’s rights, privi-

leges, and immunities secured by equal protection protec-

tions under the Constitution and the laws of United States

and the Constitution and laws of the State of Arizona.

App. 78

145. The challenged regulations, Defendants’ policy,

and the denial of Cholla’s application for a commercial

source number, together and separately, violate Cholla’s

right to prohibition against exclusion from participating

in, denial of benefits of, and discrimination under federally

assisted programs under 42 U.S.C. § 2000d.

146. Cholla has no fully adequate remedy at law.

Prayer for Relief

WHEREFORE, Cholla Ready Mix, Inc. respectfully

requests that this Court enter a judgment for Cholla

Ready Mix, Inc. and against Defendants, awarding the

following relief:

1. A declaration that the challenged regulations

violate Cholla’s rights against establishment of religion

under the First Amendment to the United States Consti-

tution;

2. A declaration that the formulation, implementa-

tion, and enforcement of Defendants’ policy violate Cholla’s

rights against establishment of religion under the First

Amendment to the United States Constitution;

3. A declaration that denial of Cholla’s application

for a commercial source number violates Cholla’s rights

against establishment of religion under the First Amend-

ment to the United States Constitution;

4. A declaration that the challenged regulations

violate Cholla’s rights against establishment ef religion

and right to toleration of religious sentiment under Article

2, Section 12 and/or Article 20, Section 1 of the Arizona

Constitution;

App. 79

5. A declaration that the formulation, implementa-

tion, and enforcement of Defendants’ policy violate Cholla’s

rights against establishment of religion and right to

toleration of religious sentiment under Article 2, Section

12 and/or Article 20, Section 1 of the Arizona Constitution;

6. A declaration that denial of Cholla’s application

for a commercial source number violates Cholla’s rights

against establishment of religion and toleration of reli-

gious sentiment under Article 2, Section 12 and/or Article

20, Section 1 of the Arizona Constitution;

7. A declaration that the challenged regulations

violate Cholla’s right against the application of “special

laws” under Article 4, Section 19 of the Arizona Constitu-

tion;

8. A declaration that the formulation, implementa-

tion, and enforcement of Defendants’ policy violate Cholla’s

right against the application of “special laws” under

Article 4, Section 19 of the Arizona Constitution;

9. Adeclaration that the challenged regulations deny

Cholla equal rights under the law pursuant to 42 U.S.C.

§ 1981; -

10. A declaration that the formulation, implementa-

tion, and enforcement of Defendants’ policy deny Cholla

equal rights under the law pursuant to 42 U.S.C. § 1981;

11. A declaration that the denial of Cholla’s applica-

tion for a commercial source number denies Cholla equal

rights under the law pursuant to 42 U.S.C. § 1981;

12. A declaration that the challenged regulations

violate Cholla’s right against the deprivation of rights

under 42 U.S.C. § 1983;

App. 80

13. A declaration that the formulation, implementa-

tion, and enforcement of Defendants’ policy violate Cholla’s

right against the deprivation of rights under 42 U.S.C.

§ 1983;

14. A declaration that the-denial of Cholla’s applica-

tion for a commercial source number violates Cholla’s right

against the deprivation of rights under 42 U.S.C. § 1983;

15. A declaration that the challenged regulations

violate Cholla’s right against exclusion from participation

in, denial of benefits of, and discrimination under Feder-

ally assisted programs under 42 U.S.C. § 2000d;

16. A declaration that the formulation, implementa-

tion, and enforcement of Defendants’ policy violate Cholla’s

right against exclusion from participation in, denial of

benefits of, and discrimination under Federally assisted

programs under 42 U.S.C. § 2000d;

17. A declaration that the denial of Cholla’s applica-

tion for a commercial source number violates Cholla’s right

against exclusion from participation in, denial of benefits

of, and discrimination under Federally assisted programs

under 42 U.S.C. § 2000d;

18. An injunction barring any implementation or

enforcement of the challenged regulations and Defendants’

policy in any manner that considers religion in granting or

denying commercial source number applications in viola-

tion of Cholla’s rights under the First Amendment of the

United States Constitution and/or Article 2, Section 12

and/or Article 20, Section 1 of the Arizona Constitution

generally;

19. An injunction barring any implementation or

enforcement of the challenged regulations and Defendants’

App. 81

policy as to Cholla in any manner that considers religion

in granting or denying any application by Cholla for a

commercial source number in violation of Cholla’s rights

the First Amendment of the United States Constitution

and/or Article 2, Section 12 and/or Article 20, Section 1 of

the Arizona Constitution;

20. An injunction directing Defendants to grant

Cholla a commercial source number;

21. An injunction barring any implementation or

enforcement of the challenged regulations and Defendants’

policy in any manner that violates rights against the

application of “special laws” under Article 4, Section 19 of

the Arizona Constitution generally;

22. An injunction barring any implement

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